Colbey-Hinkley Co. v. Jordan

TYSON, J. The petition in this case was exhibited in the probate court for the purpose of having divided [636] between the petitioner and the respondent certain logs owned by them in equal shares as tenants in common. The jurisdiction of the court to divide personal property is just as effectual, when properly invoked, as it is to partition real estate. — Section 3161, Code 1896. There seems to be no dispute between the parties as to their respective interest or share in the logs sought to be divided. The point of difference between them seems to be as to certain terms of the contract with respect to the size of the timber and the area from which it was to be cut, and as to which of them breached it. This contract was a verbal one. The respondent was the owner of the timber from which the logs were to be cut and hauled by the petitioner, and when cut and hauled they were to be divided equally between them. The petition seeks only a division of those that have been cut and not a partition of the standing timber which has not been converted into logs by felling. It will scarcely be doubted that, if the effect of this agreement was to invest the petitioner with an interest in the growing timber, it is void because violative of the statute if frauds, and, as to the standing timber unconverted under it into logs, is unenforceable by either party, being merely an executory one, as to the timber uncut. But the contract did not invest the petitioner with an estate in the growing timber which is a part of the land. It was nothing more than a license to him by the respondent to enter upon the land of the latter to cut and take away the timber, and was revocable at pleasure except as to the timber which had been converted into logs under it. — Riddle v. Brown, 20 Ala. 412, 56 Am. Deo. 202. As to the logs cut, the license -had become an executed one and ivas irrevocable (Giles v. Simonds, 77 Am. Dec. 373 and note) and vested in the parties equally a title to them as tenants in common. As to the timber still standing, the license, being revocable at the pleasure of the owner of it, is unenforceable by him as against the petitioner, the licensee. For clearly the petitioner cannot be held liable for its failure to- go forward with the execution of the contract when the other party to it is [637] not legally bound to perform it, and therefore cannot be made liable for his breach of it or be made to specifically perform it. It is upon this principle that a purchaser may recover back purchase money paid for land when the contract of purchase is violative of the statute of frauds. — Nelson v. Shelby Mfg. & Imp. Co., 96 Ala. 515, 11 South, 695, 38 Am. St. Rep. 116. This being true the defense attempted to be invoked against the relief here sought, that petitioner violated the contract in certain respects alleged in the answer of respondent, is of no avail, and conceding that the evidence supports this attempted defense, this will not defeat the petitioner’s right to the relief sought. The decree dismissing the petition will be reversed and one will be here rendered granting the relief sought by it, with directions to the judge of probate, who tried the case, to enter an order appointing commissioners in conformity with section 3166 of the Code of 1896. Reversed and rendered. Weakley, C. J., and Simpson and Anderson, JJ., concur.