Hand v. Fillingame

Calhoon, J., delivered the opinion of the court. James Hand had the title from the government down to February 4, 1904. On that day he made a conveyance to the Eillingames, which, after reciting the consideration, proceeds thus: ■“I convey and warrant unto M. O. and O. A. Fillingame the [189] following described land”- — describing it, and then after a period it proceeds thus: “It is further understood and agreed that-the grantor herein reserves and holds a vendor’s lien on the above-described land until all of Nthe purchase money as above-described is fully paid.” Then after another period it proceeds: “It is further understood and agreed that the grantor herein reserves all of the timber standing and growing on the above-described land, which lies on the north side of Beaver Dam branch,, from twelve inches and up at the stump, and is to have full right of way through said lands for the purpose of removing said timber. The grantor hereby agrees to remove said timber within twelve months from this date.” After twelve months expired,. Hand did cut and remove about $15 worth of the timber, for-which he was sued for trespass by the Fillingames, and appeals to this court. We hold that the meaning of this instrument is that Hand made an absolute conveyance of all this land, which included the timber on it, subject to his right to remove such of the timber as was from twelve inches and up at the stump within twelve months, and that what he did not remove within the twelve months was the property of the grantees, who had a right to the action of trespass against him after the time expired. Affirmed*