West v. Maddox

ANDERSON, O. J. The appellant makes no point on this appeal that the cedar timber removed by the appellee Maddox was not covered by the contract of sale; that it was not merchantable timber as described in the timber contract of sale executed by the plaintff August 26th, 1910, so as to bring this case within the influence of Wright v. Bentley Co., 186 Ala. 616, 65 South. 353. The contention is that the contract of sale should be so construed as to reinvest the plaintiff with the title after the expiration of the time limit fixed in the contract within which the grantee should remove same. This question has been decided adversely to this contention in the case of Zimmerman Co. v. Daffin, 149 Ala. 380, 42 South. 858, 9 L. R. A. (N. S.) 663, 123 Am. St. Rep. 58, and which said case has been repeatedly cited and followed by this court. See Shepherd v. Mt. Vernon Co., 192 Ala. 322, 68 South. 880. It is true this case is opposed by the decisions of many of the courts, yet it is supported by a considerable number also, and we are not disposed to overrule same, as it is stare decisis. The Daffin Case, supra,, was decided and followed several years before the execution of this contract, and the [614] parties thereto presumptively entered into the same subject to the construction placed upon similar ones by the decisions of this court. As the plaintiff had no interest in or title to the cedar timber in question, the trial court did not err in giving the general charge as to said cedar timber for the defendants. It is suggested that the Bennett Company waived its right to remove the timber after January 1, 1912, and that the effect of this was to reinvest the plaintiff with the ownership. This they could possibly have done; but the only evidence on the subject tends to establish a grant of their right to Maddox, and there is nothing to indicate that they surrendered or waived their right in favor of the plaintiff. The judgment of the circuit court is affirmed. Affirmed. Mayfield, Somerville, and Thomas, JJ., concur.