Greenleaf Johnson Lumber Co. v. Valentine

Hoke, J. On careful consideration we think the record presents only a “moot question,” and under our decisions the court should express no opinion concerning it. Parker v. Bank, 152 N. C., 253; Blake v. Askew, *425 76 N. C., 327. Tbe cases on the subject bold tbat in order to secure the right of extension under one of these timber deeds as ordinarily drawn and unless otherwise expressed in the instrument the amount stipulated for must be paid or tendered to him who owns the title, when the payment is due. And where the owner has died within the time, the title passing by bis will or descent the payment must be made or tendered to the devisee or heir. Mizell v. Lumber Co., 174 N. C., 68; Timber Co. v. Wells, 171 N. C., 264; Timber Co. v. Bryan, 171 N. C., 266; Bateman v. Lumber Co., 154 N. C., 248; Hornthal v. Howcott, 154 N. C., 228. This action purports to be one to establish in plaintiff company the right to cut the timber on a certain tract of land now owned by a minor, Arthur Jordan Griffin, devised under the will of Mrs. Yarboro. From the facts in evidence it appears tbat the timber bad been cut when the suit was commenced, and it or its proceeds held by the plaintiff company, and there is no one now a party or against whom the suit is or purports to be prosecuted who seeks to challenge plaintiff’s right or is in any position to do so. Not the adult defendants, their deeds contain exception in favor of the timber and the timber rights granted t.o plaintiff company, and they have no interest therefore in this controversy, and do not claim any. Ricks v. McPherson, 178 N. C., 154, 158, citing Powell v. Lumber Co., 163 N. C., 36. Not the guardian — be does not own the timber, the title thereto is or was in the devisee, the minor, and it is from bis interest and ownership tbat the right claimed by plaintiff must be secured. Bryan v. Lumber Co., supra. Such a right, therefore, can only be established and made efficient in a suit which is and purports to be against or in favor of the infant, and to which be has been made a party. 21 Cyc., 193; 12 R. C. L., Guardian and Ward, p. 1146; 14 R. C. L., sec. 53. It was stated on the argument and unchallenged, so far as noted, tbat such a suit bad been instituted by the infant owner seeking to recover damages of the company for the alleged wrongful cutting of bis timber. In view of this statement and the suggestions of the court in the recent case of Morton v. Lumber Co., 178 N. C., 163, to this effect, tbat a suit in court and due inquiry would be required to establish a valid tender where the title was held by an infant. We deem it not amiss to say tbat the privilege of renewal having been provided for by a binding contract of the former owner—an inquiry into its fitness and' whether such a stipulation would be to the advantage of the minor is no longer open to inquiry, and should it be properly shown in the alleged suit between the devisee and the company tbat a payment or tender of the amount required to secure the extension bad been made by the company or its agent within the time, to the regularly constituted guardian of the infant’s estate, it would suffice. *426 Snob fact, however, to have any effect and meaning, should be established in a suit between the infant owner and the company and presenting the only real issue now existent in this controversy — that is, whether the cutting of the timber by the company amounted to an actionable wrong. The case of Morton v. Lumber Co. was well decided as no payment or tender was shown within the time required to any one having authority to receive it. The suggestions referred to, however, are well calculated to mislead litigants in the trial of causes of this kind, and we take this early opportunity to correct the error. For the reasons stated, we are of opinion and so hold that the present action be dismissed as presenting only a feigned issue, but without prejudice to the rights of the parties in any further litigation that may be had between them. Action dismissed.