Griffith v. Ayer-Lord Tie Co.

Wood, J., (after stating the facts). The rights of the respective parties to this controversy can only be determined by the construction of the instrument designated as a “timber deed” and set out in the statement, under which the appellee claims that it was the owner of the crossties, and that same had been sold and wrongfully converted by Leffler. The appellant denied the title of the appellee to the ties in controversy, and contended that he was an innocent purchaser thereof for value. A proper construction of the instrument will determine all the questions in controversy. The complaint, while loosely drawn, was not fatally defective on demurrer, and was sufficient to state a cause of action as for conversion of the crossties, for the value of which appellee sued. The defects in it should have been reached by a motion to make more definite and certain rather than by demurrer. The correctness of the judgment turns upon the question of whether or not the instrument in evidence was a deed to appellee, creating an absolute title in it to the crossties in controversy, or whether or not it was intended as a deed to Leffler with a mortgage back to appellee • creating a lien in its favor for the purchase money advanced to pay for the timber, and also the amounts advanced to Leffler to pay for the manufacturing of the same into crossties. Construing the whole instrument, we are of the opinion that it was a deed conveying the absolute title to the timber in controversy to the appellee. The words by which the title is conveyed are in the face of the deed, and they show that the grantor had ‘ ‘ sold and conveyed unto said Ayer-Lord Tie Company all of the white oak timber,” etc. These words undoubtedly conveyed the legal title. There are no words in the instrument anywhere conveying the timber to Leffler. The words endorsed on the back of it, to the effect that Leffler “was the absolute owner,” are not words of conveyance, and these words have no effect whatever to place the title in him. The timber, until the same was severed from the soil, was real estate, and, in order to convey to Leffler the legal title thereto, it was absolutely necessary that somewhere in the instrument there should be words expressing the fact of a sale or transfer of the title to him; that is, the words “grant, bargain and sell,” or words of the same purport. Kirby’s Digest, § 731. The transfer of the timber growing on the land must be by deed. Any other attempted mode of transfer would be within the statute of fraud and void. The words on the face of the deed, “by the written direction of J. S. Leffler,” and “as per directions and agreement on the reverse side hereof,” are surplusage and could not operate under the statute to make the other words of conveyance applicable to a transfer of title to Leffler. The language, also, “Having this day and date purchased from you the within described timber, and now being the owner thereof,” could not operate under the statute to convey to Leffler the title to the timber. So. as between the parties to this suit, the appellant and the appellee, the instrument under consideration must be hold to be i deed conveying the absolute title to the timber to the appellee. It follows, therefore, that the court was correct in instructing the jury that if Leffler cut and removed the ties from the land in controversy, without the consent of the plaintiff, that Leffler and Wofford would be wrongdoers and trespassers; and, although the defendant, appellant here, innocently purchased said .crossties from such trespassers, he would still be liable to the owners for their value, with 6 per cent interest from the date of the conversion, without deduction on account of the increase in value by the work and labor of such trespassers or wrongdoers. The court did not err in telling the jury, as a matter of law, that appellee was the owner of the ties, for that was the proper construction to give the deed under which appellee claimed title. According to the construction given the instrument under consideration, it follows that there was no error in any of the rulings of the court in refusing and giving of instructions. The case was one to be tried in a law court, and the record is free from any error prejudicial to appellant. The judgment is therefore affirmed.