Powers v. Angola Lumber Co.

Allen, J., after stating tbe case: Tbe last installment of tbe purchase price was paid in September, 1900, and tbe deed *407 says, “All of said timber shall be removed within a period of five years from the date of the last installment of the above-mentioned purchase money.” It follows that the right to remove under this clause of the deed expired in September, 1905. We have held at this term in Hornthal v. Howcott, ante, 228, speaking of a timber deed like this: “It is well settled, on principle and by authority, that the legal effect of the instrument is that the vendor thereby conveyed to the vendee all of the trees and timber on the premises which the vendee should remove therefrom within the prescribed time, and that such as remained thereon after that time should belong to the vendor or to his grantee of the premises.” The tender was made too late to give the defendant the benefit of the extension clause. In Bateman v. Kramer Lumber Co., ante, 248, a similar provision was under consideration, and it is there said: “The stipulation in this instrument, ‘that the parties shall have two years in which to cut and remove the timber, and in the event they do not get it all off in that time, they shall have one year’s time thereafter to remove the same, by paying to the party of the first part interest on the purchase money for said extension of time,’ by correct interpretation requires that on or before the expiration of the aforesaid period of two years the grantees claiming the privilege should notify the owner of the property and tender the stipulated amount.” This case is stronger in favor of the plaintiff because it is in the deed that in order to be entitled to the extension the interest must be paid “each year in advance.” The defendants have failed to pay or tender payment within five years from the payment of the last installment of the purchase money, and have lost their rights under said deed. No error.