McKenzie v. Shows

Woods, J., delivered the opinion of the court. In this state, for more than thirty years, and since the opinion of this court in Harrell v. Miller, 35 Miss., 700, it [390] has been settled law that trees growing upon land are part and parcel of the realty; that “ the term land embraces, not only the soil, but its natural products growing upon and affixed to it.” Was the sale of all the merchantable timber, of certain dimensions, on the entire homestead, with an indefinite time for its removal, a conveyance of an interest in the land, or an incumbrance upon it, and invalid, and of no force, because of the failure of the wife to join in the deed? The growing trees are a part of the realty, and may be, in case the lands are what are denominated timber-lands in contradistinction to other lands called agricultural lands, a very valuable part of the realty. In a readily supposable case, the sale and removal of the entire forest growth would practically destroy the value of the realty. In the case at bar it is alleged in the bill, and not denied in the answer, that the lauds in question would be only worth about one-half as much as they are, if the timber should be taken off. Under our own decision referred to, the sale of the growing timber is a sale of a part and parcel of the land itself. It is a conveyance of an interest in the land — in the present case, an important interest. By all authorities, it is an incumbrance upon the homestead. Says Cooley, J., in Post v. Campau, 42 Mich., 90, “ any thing is an incumbrance which constitutes a burden upon the title,” citing a number of instances, and, continuing, “ they permanently reduce the value of the title conveyed.” In Prescott v. Trueman, 4 Mass., 627, Parsons, C. J., employs this language: “We are of opinion that'every right to or interest in the land granted, to the diminution of .the value of the land, but consistent with the passing of the fee of it by the conveyance, must be deemed in law an incumbrance.” In Cathcart v. Bowman, 5 Penn. St., 317, it is held that the conveyance by deed of the timber on land, with the privilege of cutting it during a certain term, was an incumbrance of the land, and violated the covenant of warranty in a subsequent deed of the land itself to [391] a third person. The like doctrine has long prevailed in New York and Pennsylvania. But it is useless to multiply authorities. The question cannot be regarded as-unsettled in our courts, if Harrell v. Miller is followed to its logical conclusion. The growing trees are part and parcel of the land, by that case, and the sale of such trees, and especially the wholesale conveyance shown in the case at bar, with the large diminution in value of the homestead, is clearly and inevitably the sale of an interest in the land, and constitutes an incumbrance upon it. There is no estate in reversion expectant upon which the appellants can enter upon the proper sale of the homestead by the husband and wife jointly, for the reason that the attempted conveyance aud incumbrance of the husband alone, in the sale by deed of the timber, was absolutely invalid to convey any right or title. Collins, the purchaser of the timber, acquired nothing by the invalid conveyance from the husband alone. "We are not inclined to eat away a wise and most beneficent statute, designed for the welfare and support and comfort of wives and children, by engrafting any exceptions upon it. The law must be upheld and enforced as written, and this we do by declaring Yawn’s deed to the timber on the homestead an incumbrance upon the title, and invalid for any purpose. Affirmed.