Hornthal v. . Howcott

Allen, J. This action was instituted to determine the title to certain pine and poplar timber standing on the land de *229 scribed in tbe complaint. Tbe plaintiffs are L. H. Horntbal and Flora Sbeleeman, wbo is tbe only beir at law of Louis Horntbal, deceased. It appears from tbe record that prior to 5 May, 1900, L. H. and Louis Horntbal were tbe owners of said land, and that on tbat day tbey executed to tbe John L. Roper Lumber Company a deed by wbicb tbey conveyed all tbe pine and poplar timber on said land, not less than 11 inches on tbe stump when cut, with tbe right to enter and to cut and remove said timber within four years from tbe date of tbe deed, and tbat on 30 October, 1902, tbey (L. H. and Louis Horntbal) executed a deed to tbe defendants, by wbicb tbey conveyed tbe tract of land on wbicb tbe timber conveyed to tbe Roper Lumber Company was situate. This last deed to tbe defendants contains tbe following provision, after tbe description of tbe land, upon which tbe settlement of tbe controversy depends: “Tbe pine and poplar timber having been previously sold to tbe John L. Roper Lumber Company, and is excepted from this 'deed.” Tbe case was submitted to tbe Superior Court on these facts, tbe defendants reserving certain exceptions to tbe refusal of the judge to admit evidence offered by them, wbicb need not be considered. Tbe plaintiffs contend tbat tbe effect of tbe provision in tbe deed to tbe defendants is to except from tbe operation of tbe deed all tbe pine and poplar timber on tbe land measuring 11 inches and more, and tbat tbey are tbe owners of all of said timber not removed in four years, and defendants say tbat it excepted tbe timber conveyed to tbe Roper Lumber Company, and tbat tbe timber conveyed was such as was cut in four years, and tbat all of tbe timber not cut and removed in four years passed to them under their deed. Tbe judge presiding at the trial sustained tbe contention of tbe plaintiffs, and in this we think there is error. Tbe object of courts in tbe construction of a paper-writing- is to discover wbat tbe parties to it intended, and whether apt language has been used to give effect to tbe intention. Ordinarily, this must be gathered from tbe paper itself; but every act has its connections and associations, and to be understood must be placed in its appropriate setting. At tbe time tbe deed to *230 tbe defendants was executed, tbe four years witbin wbicb tbe Roper Lumber Company bad tbe right to cut and remove tbe timber bad not expired, and there is nothing to indicate that they did not expect this right to be exercised. Tbe plaintiffs were executing a'deed conveying tbe land to tbe defendants, and they bad previously executed a deed to tbe Roper Lumber Company, conveying timber, and were familiar with its terms. They knew it was usual to fix tbe time witbin wbicb tbe timber could be removed, and to reserve tbe right to enter for tbe purpose of cutting- and removal. It is true, it is not necessary to state any time witbin wbicb tbe timber is to be removed, in a deed conveying tbe land and reserving tbe timber, and that tbe grantor in such deed “is not providing for timber cutting, but reserving a right, and should be entitled to bold till this is put an end to by tbe grantee’s giving notice for a reasonable time, so that tbe grantor may elect to cut or sell this right to another.” Mining Co. v. Cotton Mills, 143 N. C., 308, and that tbe grantor has tbe right to enter for tbe purpose of removal, without expressly reserving it (Am. and Eng. Enc. L., vol. 28, p. 543); but it is not probable, if tbe plaintiffs thought, they bad any interest in tbe timber, that they would have left-important rights like these to depend on judicial construction, knowing, as they did, that similar provisions were in tbe deed they executed and that they were inserted to protect tbe rights of tbe owner of tbe timber. Tbe deed contains covenants of seizin and warranty and one against encumbrances, and tbe purpose of tbe parties in inserting tbe provision under consideration was to protect tbe grantor against these covenants, tbe deed to tbe Roper Lumber Company being regarded as an encumbrance. Tbe language of tbe exception seems to put tbe matter at rest. It is: “Tbe pine and poplar timber having been previously sold to tbe John L. Roper Lumber Company, and is excepted from this deed.” If, then, we determine what timber had been previously sold to tbe Roper Lumber Company, we fix tbe scope and extent of tbe exception. In speaking of a timber deed like this, Justice Hoke says, in Hawkins v. Lumber Co., 139 N. C., 162: “Tbe true construction of this instru *231 ment is that tbe same conveys a present estate of absolute ownership in tbe timber, defeasible as to all timber not removed witbin tbe time required by tbe terms of tbe deed”; and this statement of tbe law is approved in Lumber Co. v. Corey, 140 N. C., 467. It follows from tbis construction, tbat at tbe expiration of four years, under tbe terms of tbe deed, tbe Eoper Lumber Company bad no title to tbe timber not removed, and tbat tbe effect of tbe deed was to convey to tbe lumber company all tbe pine and poplar timber cut and removed witbin four years, and no more. Tbe exception is no broader than tbis. Therefore, tbe deed of tbe plaintiffs to tbe defendants conveys tbe land and all tbe pine and poplar timber not cut and removed by tbe Eoper Lumber Company witbin four years from tbe date of the deed to it. Tbe case of Strasson v. Montgomery, 32 Wis., 52, seems to be directly in point. In tbat case one Gleason, who was the owner in fee of the lands, conveyed tbe timber thereon to one White, on 4 December, 1866, and gave him four years witbin which to remove it. In September, 1867, tbe said Gleason conveyed tbe land to tbe plaintiff Strasson, by deed containing tbe following provision: “excepting and reserving a certain amount of timber heretofore sold Elias N. White.” White conveyed bis interest in the timber to tbe defendant, who entered after tbe expiration of tbe term of four years and cut tbe timber, and tbe plaintiff sued to recover damages. It was held tbat tbe plaintiff was entitled to recover. Tips Court says, on page 57: “Tbe former conveyance was of all trees and timber on the premises, with tbe proviso tbat White should take tbe same off tbe land witbin four years, or by 4 December, 1870. It is well settled, on principle and by authority, tbat tbe legal effect of tbe instrument is tbat Gleason thereby conveys to White all of tbe trees and timber on the premises which White should remove therefrom witbin the prescribed time, and tbat such as remained thereon after tbat time should belong to Gleason or to bis grantee of tbe premises. Having thus ascertained what Gleason conveyed to White, we are next called upon to determine tbe legal effect of tbe exception or reservation in tbe deed *232 to tbe plaintiff. Tbe language is, 'excepting and reserving a certain amount of timber heretofore sold to Elias N. White.’ But we have already seen that tbe timber sold to White was only such as be should take off tbe premises by 4 December, 1870. Hence, tbe timber remaining on tbe premises after that date is not included in tbe above language, and is not excepted or reserved at all.” This case is cited with approval in Bunch v. Lumber Co., 134 N. C., 121, and in Hawkins v. Lumber Co., 139 N. C., 163. In Bunch's case, Justice Walker, speaking for tbe Court, quotes with approval tbe following language from tbe Slrasson case: “It is well settled, on principle and by authority, that tbe legal effect of tbe instrument is that tbe vendor thereby convoyed to tbe vendee all of tbe trees and timber - on tbe premises which tbe vendee should remove therefrom within tbe prescribed time, arid that such as remained thereon after that time should belong to tbe vendor or to bis grantee of tbe premises.” Tbe defendants in this case are grantees of tbe premises, under a deed from tbe plaintiffs, and we conclude that tbe legal effect of that deed is to convey to tbe defendants tbe land and all tbe timber thereon not cut and removed by tbe Boper Lumber Company within four years from tbe date of its deed. Reversed.