Carroll v. . Batson

BbogdeN, J. What interest does the grantee of land have in timber reserved therefrom in the deed of the grantor ? This question was considered by the Court in Mining Co. v. Cotton Mills, 143 N. C., 307, 55 S. E., 700. The law is thus stated whore the, land was conveyed in fee with an exception or reservation of the timber: “In such case, if a time or event is specified upon which the timber must be cut, the reservation expires upon the happening of the. event or expiration of the time. . . . Whether the right to cut timber is a grant, or a reservation, it expires at the time specified. When no time is specified a grantee of such right takes upon the implied agreement to cut and remove within a reasonable time. He has bought the timber for that purpose, whereas when a grantor of the fee reserves or excepts the timber, he is not providing for timber-cutting, but reserving a right, and should be entitled to hold till this is put an end to by the grantee giving notice for a reasonable time so that the grantor may elect to cut or sell this right to another.” Again in Hornthal v. Howcott, 154 N. C., 228, 70 S. E., 171, the owner of the land sold the timber with the right to cut and remove the same within four years. Thereafter he sold the land by deed reciting the reservation of the timber. It was held that the grantee of the land was the owner of all the timber not cut within the time stipulated. It has been further held that notice that an extension privilege would be exercised must be- given to the grantee of the land. Bateman v. Lumber Co., 154 N. C., 248, 70 S. E., 474; Kelly v. Lumber Co., 157 N. C., 175, 72 S. E., 957; Powell v. Lumber Co., 163 N. C., 36, 79 S. E., 272. In Shannonhouse v. McMullan, 168 N. C., 239, 84 S. E., 259, the Court said: “Applying these principles, if the timber should not be cut in five years it' would, then belong absolutely to the defendants as purchasers of-the land, and they could cut it when they wished to do so. In other words, when the defendants bought the land they also bought the right to extend the time for cutting, and the latter was merged in the title to the land, and therefore no interest can become due.” It is clear, therefore that, under the decisions applicable, Tilton as purchaser of the land from Southerland acquired title to all the timber reserved by the grantor Southerland at the expiration of the reservation contained in the deed. In other words, at the expiration of the reservation .the timber followed the land and became a part thereof. Hence the timber deed to Batson and Hopkins could not enlarge the right of the grantor Southerland to the reserved timber nor impair the interest of *171 Tilton, tbe owner of tbe land. Tbe execution and delivery of tbe pur-ebase-money mortgage on tbe land by Tilton to Southerland did not bave tbe effect of enlarging tbe right of Southerland or bis interest in tbe timber. “Tbe legal title to property, whether real or personal, conveyed by a mortgage deed, passes to and vests in tbe mortgagee, who bolds tbe same, however, only for purposes of security. Tbe equitable or beneficial title remains in tbe mortgagor, who, as to all persons except tbe mortgagee, is considered tbe true owner of tbe property. With respect to tbe property conveyed to him as security, tbe mortgagee has such rights only as are required for tbe protection of bis security, and it is for this reason that be is considered as tbe bolder of tbe legal title.” Bank v. Lumber Co., 193 N. C., 757, 138 S. E., 125. Under tbe foreclosure proceeding and the deed from Allen, commissioner, pursuant thereto, Carroll, tbe plaintiff, became tbe purchaser of tbe land. Tbe manifest effect of tbe foreclosure proceeding was to divest Tilton of title to tbe land by barring and destroying bis equity of redemption. Tbe plaintiff, Carroll, as purchaser of tbe land at tbe foreclosure sale, succeeded to tbe right of Tilton. As heretofore pointed out, Tilton was entitled to .all timber not cut within five years or during tbe extension privilege specified in tbe deed from Southerland to him. Tbe deed provided that .the extension privilege was dependent upon payment to Tilton of tbe sum of “$100 per year.” Carroll, tbe purchaser of tbe land at tbe sale, testified that no extension money bad been tendered or paid to him on or before 13 January, 1925, when tbe original five-year reservation period expired. Tbe defendants offered evidence to tbe contrary. Therefore an issue of fact is sharply drawn and such issue must be determined by a jury. Reversed.