Edward Hines Yellow Pine Trustees v. Bond

*639 MoGrowssr, J., delivered the opinion of the court. In the chancery court appellee, Rutillus Bond, by his bill alleged, and by his proof sustained, the allegation that appellant, Edward Hines Yellow Pine Trustees, by its authorized agents, cut and removed from appellee’s land trees of the value of one thousand two hundred eighty-seven dollars and fifty cents. Appellee acquired title from Beall to the land on which the trees stood on December 30, 1901. Beall’s title was *640 direct from the government. On May 6, 1901, Beall conveyed certain trees to R. Batson, and appellant’s defense rested on a construction of the last-named timber deed, the material parts of which timber deed we quote as follows, to-wit: “We grant, bargain, sell, convey, and warrant unto Randolph Batson of Hillsdale, Mississippi, his heirs and assigns, all timber on the land described as follows. [Here follows description of land.]” Again there occurs this clause in the deed: £ ‘It is intended that this instrument is to convey all the timber on forty acres of land in the above section and township as stated.” It was further alleged in the bill, and agreed to by counsel, that : “The term ‘timber,’ as used in said deed, had in Pearl River county, where the lands are situated, a local, well-defined meaning, and that these words meant pine trees from which saw logs suitable for manufacturing into lumber were cut, which meaning had been fixed by the custom or usage of lumbermen and timber men in their operations in said locality; that by said usage and custom pine trees which measured less than twelve inches in diameter twenty-four inches above the ground were not considered timber in said locality on the date' of said deed, but only those pine trees which measured twelve inches or more in diameter twenty-four inches above the ground, were then considered timber in said locality. “It was further agreed that the defendants cut and removed from said land, on and before January 1, 1922, pine trees of the actual value of one thousand dollars, which measured less than twelve inches in diameter twenty-four inches above the ground at the time of said timber deed from John A. Beall and wife to R. Batson. “It was further agreed that the defendants (appellants) cut the timber under a claim of ownership by mesne conveyances from John A.. Beall and wife.” *641 Beall, the grantor in the timber deed, and Batson, the grantee, testified orally what their understanding was as to what each the grantor and the grantee thought “all timber” meant, saying they construed the deed to mean all kinds and sizes of timber on that forty acres, hut they did not say that there was any such agreement between them. As we construe the evidence of these witnesses, they both agree that the word “timber” had the meaning set forth in above agreed statement of facts in that community and locality as fixed by custom and usage there. The complainant rested his case on above agreed facts. The court, on motion, excluded the testimony of Beall and Batson as to construction of the contract and as to their intention. We think the court was correct in so holding, because the closest scrutiny of their evidence does not disclose any agreement or understanding different from the language of the deed, and they both testified that the agreed statement of facts correctly stated the custom and usage in that locality at the date of the execution of the timber deed. It follows that the decree of the court below was in accordance with the rule announced in Kerl v. Smith, 96 Miss. 827, 51 So. 3, and adhered to in the cases of Vinegar Bend Lumber Co. v. Churchwell et al., 123 Miss. 807, 86 So. 299, which we will not repeat here, contenting ourselves with saying that parties may not be heard to construe their intentions for the courts, in the absence of agreement a quarter of a century after the contract was made. What they state was said is identically the language of the deed. Affirmed.