Carolina Timber Co. v. Wells

Hoke, J., after stating tbe case: Our decisions bold that standing timber is realty, subject to tbe laws of devolution and transfer applicable to that kind of property, and that timber deeds of this character, as ordinarily drawn, convey an estate of absolute ownership, defeasible as to all timber not cut and removed within tbe specified period. Williams v. Parsons, 167 N. C., 529; Midyette v. Grubbs, 145 N. C., 85; Lumber Co. v. Corey, 140 N. C., 467. Tbe cases on tbe subject are to tbe effect, further, that a stipulation of tbe kind now presented, providing for an extension of tbe time within which tbe timber must be cut, is in tbe nature of an option, and it is held by tbe great weight of authority that contracts of this character do not of themselves create any interest in tbe property, but only amount to an offer to create or convey such an interest when tbe conditions are performed and working a forfeiture when not strictly complied with. Waterman v. Banks, 144 U. S., 394; Hacher v. Weston, 197 Mass., 143; Gaston v. School District, 94 Mich., 502; Newton v. Newton, 11 R. I., 390; Bostwick v. Hess, 80 Ill., 138. Our own decisions are in general approval of these principles: Ward v. Albertson, 165 N. C., 218; Winders v. Kenan, 161 N. C., 628; Bateman v. Lumber Co., 154 N. C., 248; Hornthal v. Howcott, 154 N. C., 228; and from this it follows that where tbe time first provided in one of these timber deeds and paid for bas passed, and it becomes necessary for tbe grantee to bold by reason of tbe performance of tbe stipulation for an extension, that tbe estate or interest arises at tbe time tbe conditions are complied with, and, in tbe absence of any provision in bis deed to tbe contrary, tbe price paid belongs to him who then bas tbe title and from whose ownership tbe interest is then created. Tbe option or privilege obtained, to tbe extent of tbe right conferred, is a contract attendant upon tbe title, and, as stated, unless otherwise specified in tbe deed conveying tbe title, tbe price for tbe interest arising on proper performance of tbe conditions will inure to the- owner. It is from bis estate that tbe interest passes, and be must receive tbe purchase price. It was urged on tbe argument that tbe judgment could be upheld on tbe principle that gives tbe owner of tbe reversion tbe right to receive *265 tbe rental accruing after title descended, botb under tbe principles of tbe common law and of our statute applicable to tbe question. Holly v. Holly, 94 N. C., 670; Rogers v. McKenzie, 65 N. C., 218; Revisal 1905, sec. 1989. Neither tbe decisions nor tbe statute are directly authoritative, for tbe reason that we have held that tbe interest here conveyed is not a leasehold interest, but an estate in fee. There is, therefore, an absence of tbe tenure required to constitute rent. Hawkins v. Lumber Co., 139 N. C., 160; Bunch v. Lumber Co., 134 N. C., 116. Tbe position, however, affords a strong analogy in support of our construction of tbe contract and its effect upon tbe rights of tbe parties. It is suggested that tbe actual amount in controversy being only $27, tbe Superior Court is without original jurisdiction to determine it. Tbe controversy, however, involves an action in tbe nature of a bill of in-terpleader to determine tbe rights of two adverse claimants to a fund, and being an exercise of tbe powers of tbe court enforcible by bill in equity under tbe old system, tbe Superior Court properly assumed jurisdiction to bear and determine tbe matter. Fidelity Co. v. Jordan, 134 N. C., 236; Berry v. Henderson, 102 N. C., 525; Fisher v. Webb, 84 N. C., 44. There is no error, and tbe judgment of tbe court below is Affirmed.