Berry v. Marion County Lumber Corp.

The opinion of the Court was delivered by Mr. Justice Fraser. The appellant states its case as follows: “On the-day of January, 1899, Elisha Bethea, who then owned in fee the premises on which the timber involved in this litigation is located, conveyed to Cape Fear Lumber Company the timber in question, together with the usual licenses and easements necessary for removal. By successive conveyances, title to the fee became vested in the plaintiff; by like conveyances, the title to the timber became vested in the defendant. “The deed whereunder Cape Fear Lumber Company acquired title to the timber from Elisha Bethea contained the following time clause for the cutting and the removal of the timber, to wit: ‘The said Cape Fear Lumber Company to have 10 years from time they commence cutting our timber to cut and remove said timber, and if at the end of that time they haven’t removed said timber, then by payment of 6 per cent. Upon the purchase price they can have 10 years longer time to remove same.’ “Alleging that defendant did not commence ‘to cut and remove the said timber, until, on or about the-day of December, 1915,’ and that ‘a reasonable time for the commencement of the cutting and removing of said timber has since expired, and had expired long before the entry of the defendants,’ and that the defendants ‘have forfeited and lost all right, title and interest, etc.,’ and ‘that the same by operation of law reverted to the plaintiff,’ the plaintiff came into court and sought to permanently enjoin the defendant from exercising any Of the rights under the Elisha Bethea conveyance. In short, plaintiff seeks a forfeiture of the timber under what is now well-settled doctrine in this jurisdiction of failure to commence to cut within a reasonable time.” *302 D The point in this case is in exception 2: “(2) Because his Honor erred, it is respectfully submitted, in holding that the tender of interest under the extension clause of the contract, within a reasonable time from the date of the contract, will not dispense with the necessity, of commencing to cut and avoid a forfeiture, in that in so doing his Honor, of necessity, eliminated from the contract a covenant entered into between the parties and substituted a new contract, a creation of the court, in lieu thereof.” This court has held in many cases that the vendee and its assigns must begin to cut in a reasonable time from the date of the deed. The right to cut is forfeited by a failure to commence to cut within a reasonable time. There is no provision for an extension of the time to commence to cut by the payment of interest. The tender of interest does not extend the time to commence to cut. The tender of interest before commencing to> cut did not avoid the forfeiture. 'II. The second question does not arise. The tender of interest was definitely provided for, and the reasonable time does not apply. .The judgment appealed from is affirmed. Mr. Chiee Justice Gary and Mr. Justice Watts concur.