Hays v. McLin

Opinion op the coitet by JUDGE PAYUTER Reversing. This action was instituted by the appellants, David Hays and Jonathan L. Holcombe, against appellees, for cutting and removing timber from a certain, tract of land in Letcher county, Ky. The timber which' they ■ cut and removed was pant of the timber which John Holcombe sold and conveyed to the appellants by deed dated 7th: day of October, 1899. The timber sold to the appellants, is described as -follows: “All the merchantable yellow poplar, ash and cucumber trees or logs owned by us on the south side of Linefork creek and on the north side of Pine Mountain in Letcher «county, Kentucky.” It is recited in the dee_d -,“that the timber is sold with the expectation of immediate removal, and said second parties are to have until December, 1900, to complete the removal thereof.” The appellees denied that the title to the timber was in the plaintiffs.. On the trial of the case -the plaintiffs introduced testimony which tended to show that their vendor entered upon the land before the late Civil War, and began to claim it under his father; that in 1866 the father of the plaintiffs’ vendor executed and delivered to him a deed for the land upon which the timber in controversy grew; and that he had lived'within the boundary, and claimed it adversely, to the extent of the boundary prescribed in the deed, until the trial of the case. The proof tended to show that it was a well-defined and marked boundary. Upon this showing, the court gave a peremptory instruction to find for the. defendants. [42] If the evidence of the plaintiffs is true, their vendor had a perfect title to the land, and he had a right to sell the timber standing upon it. From the argument of the counsel for appellees, we presume that the court below proceeded upon the idea that, under the deed from Holcombe, the appellants did not acquire title to the timber, and therefore had no right to maintain the action. To sustain the action of the court, the case of Moss v. Meshew, etc., 8 Bush, 190, is cited. In that case it appeared that the owner entered into a contract by which he sold timber trees upon the land in number sufficient to make 40,000 staves; and the court held that the sale did not pass title to any particular trees, nor had the purchaser the right to enter and cut the timber without the consent'of the vendor. In this case the vendor sold “all the merchantable” timber of certain kinds on the tract, and we are of the opinion that title to them passed to the appellants, although in Moss v. Meshew, etc., there was an expression of opinion, on a question not before the court, which would appear to be in conflict with this conclusion. The contract recited that immediate removal of the timber was contemplated, yet time was given until December, 1900, in which to remove it. If a party sold 100 poplar trees upon a boundary of land, and did not mark them, then it would not vest the vendee with title to them; but, when one sells all of the merchantable timber on the land, it seems to us no additional designation is necessary. There is no marking to take place in that case, as in a case where only a certain number of trees are sold on a boundary of land. In Dils v. Hatcher (24 R., 826) 69 S. W., 1092, the court recognized a sale as valid which included all of the timber on land, of certain dimensions. The judgment is reversed for proceedings consistent with this opinion.