Conway v. Coursey

Smith, J., (after stating the facts). The court erred in giving the instructions set out for two reasons. In the first place, there was no evidence to submit to the jury that appellant ratified or confirmed the written lease introduced in the evidence. There was no evidence that appellant had any knowledge of it until after the timber had been cut and removed. And in the second place, the evidence was undisputed that appellant never at any time sold the timber nor authorized its sale. Indeed, the lease offered in evidence, and under which appellee claimed, is not a sale of the timber and does not purport to be. It is merely an agreement for the rental and clearing of lands, and such leases do not operate to convey title to the standing timber so that the tenant may sell it. In such contracts as the one here set out, the title to the timber and the right to remove it remains in the owner of the land. If the owner of the land does not» remove the timber, the tenant has the right to destroy it as it becomes necessary to do so to clear the land; but such contracts convey no right to sell the merchantable timber as such, and no right to destroy it except as it is necessary to do so to clear the land by deadening the timber or otherwise, which may of course be done if the landlord does not remove the timber in apt time. Reichardt v. Howe, 91 Ark. 280. This instruction was therefore erroneous, and as it does not clearly appear from the records that it was harmless, the judgment must be reversed. St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 134; Neel v. Brandon, 70 Ark. 79.