Manufacturing Co. v. Hobbs

MontgomeRY, J. It was admitted on tbe trial below that tbe logs belonged to tbe plaintiff, and that tbe plaintiff would be entitled to recover them if the contract, which was in writing, was sufficient and valid in law to convey them. The -contract was entered into on tbe 26th of April, 1887, between Noah Hollowell and bis -wife and tbe plaintiff, and it was set. forth therein that for tbe consideration of two hundred dollars, one-half to be paid on tbe execution and delivery and tbe 'Other half to be paid in twelve months, Hollowell and wife *47 bad sold and conveyed to tbe plaintiff “all tbe timber down to 14 inches across tbe stump when cut on 50 acres of Hollo-well’s land.” It was further stipulated in tbe contract that Ilollowell was to pay all taxes, dues, assessments, etc., on tbe land and on tbe timber, and that there was allowed to tbe plaintiff “tbe full term of five years within which to cut and .remove tbe timber hereby conveyed, said term to commence from tbe time said party of the' second part begins to manufacture said lumber into wood or lumber.” ■ Tbe trial below was conducted altogether upon issues of fraud alleged to have been committed by tbe plaintiff on Hol-lowell and bis wife in tbe treaty and tbe inducement leading up to tbe contract. Tbe issues were found in favor of tbe defendants, and a judgment was entered for tbe value of tbe logs — tbe plaintiff having taken them into bis possession. It was further adjudged that tbe contract between Ilollowell and bis wife and tbe plaintiff was void, and that tbe defendants are tbe owners of tbe timber trees standing on tbe land. We are of tbe opinion that there is on tbe face of tbe pleadings an insuperable obstacle to a recovery on tbe part of the plaintiff, and that we ought, under section 957 of The Code, to affirm tbe judgment of tbe Court below. Thornton v. Brady, 100 N. C., 38; Carter v. Rountree, 109 N. C.,29. Tbe matter to which we refer is that-provision of tbe contract by which is granted the full term of five years within which to cut tbe timber, tbe term to commence from tbe time tbe plaintiff (party of tbe second part) begins to manufacture tbe timber into wood or lumber. We think that that feature of tbe contract renders tbe whole void. Tbe contract may be treated as a lease, or a term for years, for a lease can be made of tbe right to cut trees or dig minerals. An indispen • sible legal requirement to tine creation of a lease for a term of years is that it shall have a certain beginning and a certain *48 end. Blackstone says that such an estate is frequently called a term, terminus, because its duration or continuance is bounded, limited and determined. If no time at which a lease is to commence has been mentioned, the law would fix that time as of the date of the contract. Moring v. Ward, 50 N. C., 272; 2 Bilk. Com. But there is an attempt to fix the beginning of the lease in the contract before us. It is when the plaintiff shall begin to manufacture the timber into lumber. That act on the part of the plaintiff may never take place; it is entirely uncertain. The plaintiff can not be made to commence to manufacture the timber into wood or lumber, and no rule can be thought of by which the commencement of the term can be fixed. It is evident from the reading of the contract that the fee in the land was not to pass, and yet no one can tell how long the land and the other timber upon it may remain useless to the defendants and to the Commonwealth under the indefinite and uncertain time at which the lease is to begin. If the doctrine of reasonable time could be invoked in this case, the plaintiff would be in no better condition than he now occupies. The price was $200 for the timber, 14 inches on the stump when cut, and the defendants to pay all taxes, and the contract made 13 years ago, and not a stick of timber yet cut by the plaintiff. Under these circumstances it would certainly be held as matter of law that the plaintiff had allowed a reasonable time to cut the timber to elapse, and, not having done so, its rights under the contract had been lost. The judgment below is Affirmed..