Southern Plantations Co. v. Kennedy Heading Co.

Smith, C. J., delivered the opinion of the court. This suit was instituted by appellee to recover of appellant damages by reason of a breach of warranty. In December, 1906, appellant sold to appellee a large body of merchantable timber, a part of which was situated on a sixteenth section. That portion of the deed executed by appellant material to this controversy is as follows: “Do hereby convey and sell and warrant to the Kennedy Heading Company, a corporation duly chartered and existing under the laws of the state of Arkansas, having its main office at Memphis, Tennessee, engaged in the business of purchasing timber and manufacture of heading', all of the merchantable timber of every ldncl and description now standing on the following described lands, situated and lying in the county of Yazoo, state of Mississippi, in township 12 north of base line and range 4 west of Choctaw meridian, more particularly described as follows, to wit: . . . All of section 16, except 198 acres thereof which constitutes a part oí the Grand Oak plantation, which Gland Oak plantation lies south and west of the old Florida plantation line; this land hereby conveyed in said section 16 being public school land to which the lease [148] expires, May 27, 1954.' . . . It is further agreed between the parties' hereto that the purchaser shall have seven years’ time from the date of this deed in which to remove the timber herein purchased, after which time what timber may remain upon said lands shall revert to the vendor herein without further claim or recoupment against the vendor by said purchaser. ’ ’ Appellee purchased this timber for the purpose of manufacturing part of it into barrel heads, and of then selling the remainder to other parties for commercial purposes. After making the purchase, it erected its mill on the land, manufactured part of the timber into barrel heads, and afterwards sold the remainder, except that situated on section 16. After commencing the cutting of this timber, appellee’s attention was■ called to the fact that appellant had no right to permit it to cut the timber on this section for commercial purposes; and it thereupon ceased so to do, having in the meantime cut a small quaiitity thereof. Afterwards appellee demanded of appellant that it make good its warranty to the timber on this sixteenth section, and, upon appellee’s failure so to do, instituted, in May, 1910, a suit in the circuit court of Tazoo county to recover damages alleged to. have been sustained by it by reason of the breach, by appellant, of its warranty of this timber. This proceeding in the circuit court continued for some time, and was productive of much pleading on both sides, and finally, on motion of appellant, the cause was removed to the chancery court, where, in due course, a decree was rendered in accordance with the prayer of appellee’s bill. Appellant’s contentions, in effect, are: First, that the deed executed by it to appellee is void (1) because its corporate seal was not affixed thereto, and (2) because it was fraudulently altered by appellee after its execution and delivery; second, that this deed on its face shows that the timber on the sixteenth section was not intended to be included in the warranty; third, that, should the warranty [149] be construed to cover the timber on the sixteenth section, it is void for the reason that it is an agreement to protect appellee in doing an illegal act, to wit, cutting timber for commercial purposes from sixteenth land; fourth, that in September, 1910, after the. institution of suit in the court below, appellant purchased, from the board of supervisors of Yazoo county, the timber on the sixteenth section land, which purchase inured to the benefit of appellee, and discharged appellant’s covenant of warranty. With reference to appellant’s complaint as to the chancellor’s findings of fact, including his finding that appellant’s deed had not been fraudulently altered by appellee after its execution and delivery, it will be sufficient to say that they are based upon conflicting testimony, and therefore are not subject to revision by us. There is no merit in the contention that the warranty is void because appellant’s corporate seal was not affixed to the deed, for the reason that, while such a deed may be inoperative at law, it will be enforced in a court of equity. Hines v. Imperial Naval Stores Co., 58 South. 650. Neither is there any merit in the contention that the deed on its face shows that the timber on the sixteenth section land was not intended to be included in the warranty. Appellant’s contention, in effect, is that, since the deed on its face discloses the fact that the land on which the timber is situated is sixteenth section land, it thereby necessarily discloses the fact that its interest therein was only that of a lessee, and therefore that it had no right to sell the timber, from which it necessarily follows that there was no intention on its part to warrant the title thereto. In this appellant is in error. The warranty, in express terms, covers all of the timber, and cannot be restricted by implication because of recitalsi in-other portions of the deed, unless the intention so to do is expressed in clear and unambiguous language; and the fact that the deed on its face shows that a grantor’s title is defective is immaterial, in so far as the grantee’s right [150] to recover for a breach of warranty is concerned. This is the necessary effect of the holding in Naval Stores Co. v. Tootle, 96 Miss. 486, 51 South. 801, though this point was not expressly passed on by the court. And, moreover, it is not true that, simply because the deed described the land as sixteenth section land, it thereby disclosed that appellant had not the right to dispose of the timber for commercial purposes, since such a right could have been lawfully acquired by it. Section 4702, Code 1906. Nor is there any merit in the contention that the warranty is void for the reason that it is an agreement to protect appellee in doing an illegal act, to wit, cutting timber for commercial purposes from sixtenth section land. The cutting of such timber from such land for such purposes'may, or may not, be unlawful, for the right to do so may be acquired under section 4702 of the Code; and there is nothing in the deed which indicates that an unlawful cutting" was contemplated. By its warranty, appellant represented to appellee that it had the right to sell the timber for commercial purposes, and agreed, in event it had not such right, to acquire it for the benefit of appellee when called on so to do, and, in default thereof, to refund to it the money paid therefor. Nor is there any merit in appellant’s contention that it has complied with its warranty by purchasing, after the institution of this suit, the timber from the board of supervisors under the provisions of section 4702 of the Code. It is true that if prior to eviction a grantor of land, with a covenant of warranty, purchases an out-’ standing title, it inures to the benefit of the grantee and operates as a discharge of the warranty; but where the purchase of a paramount title is made by the grantor after the eviction of the grantee, or after suit begun, when the grantee has the right of instituting a suit without actual eviction, he cannot compel the grantee to accept such after-acquired title in satisfaction of the covenant of war [151] ranty, or in mitigation of damages for the breach thereof. ■While this rule is repudiated in some jurisdictions, the great weight of authority and of reason is in accord therewith. 3 Washburn on Real Property (6 Ed.), sec. 1929; 11 Cyc. 1137, and authorities there cited in note 71. We find no error in any of the matters complained of. Affirmed.