Rountree v. . Cohn-Bock Co.

AlleN, J. It is well settled that the legal effect of the first clause in the deed to the Gay Lumber Company, conveying the timber with the right to remove the same in five years, is to convey all the timber which the vendee should remove within the prescribed time, and that such as remained thereon after that time would belong to the vendor, or to his grantee of the premises. Hornthal v. Howcott, 154 N. C., 228; Powers v. Lumber Co., 154 N. C., 407. It was also decided in Bateman v. Lumber Co., 154 N. C., 248, that the correct interpretation of a clause extending the time within which the timber may be removed requires of the grantee, claiming the privilege, that he notify the owner of the property of his intention to exercise it, and that he pay or tender the stipulated amount on or before the expiration of the first period granted for the purpose of removal of the timber. It follows, ■ therefore, from these authorities and upon the admissions, that no notice was given to the grantors in the deed to the Gay Lumber Company of an intention to exercise the privilege of extending the time for the removal of the timber, and that no money was paid or tendered on or before the expiration of the first period; that the defendant has no title to nor interest in the timber unless there is something in the deed which requires the application of a different doctrine. The defendant contends there is a clause in the deed, not to be found in any of the timber deeds considered by this Court, which distinguishes it from the cases cited, and relies upon that part providing that “The said parties of the second part, their heirs and assigns, shall have power, and are hereby authorized, at any time during period last aforesaid, to enter upon the lands,” etc. *156 In our opinion, that clause does not have the effect of waiving any of the conditions necessary to make the extension clause effective, but does define what may be done under it after the conditions have been performed. The “period last aforesaid” has never had any existence, because of failure to give notice, and to pay or tender the stipulated amount, and the defendant cannot justify an entry on the lands thereunder. We therefore conclude that there is no error in the judgment restraining the defendant from entering on said lands and cutting the timber therefrom. Affirmed.