Wilson v. Vincennes-Mississippi Land & Lumber Co.

Stephens, J., delivered the opinion of the court. Appellant Calhoun Wilson, operating under the trade-name of Wilson Land & Lumber Company, purchased from appellee all the merchantable timber on about three thousand one hundred acres of land in Washington county with the right to cut and remove the timber so purchased within six years from January 1, 1913. The contract between the parties bears date of September 14, 1912. By the term of the contract, five hundred acres in one body and all timber thereon are to revert back to the grantor at the expiration of the year 1913, and “five hundred acres each following year until the tract is finished, with the understanding that during the last year 1918 said party of the first part be required to remove only what is left on said tract, and the said party of the second part is to complete the cutting of the timber as it goes, turning back to the grantor the land which has been cut over and from which the timber has [195] been removed, and thereafter the party of the second part is not to enter upon the said land for the purpose of further cutting. . . . Possession is only given, said party of the second part for the purpose above set forth; otherwise, fully retained by party of the first part. ’ ’ The controversy presented by this appeal arises out of the following clause: “Party of the first part agrees to pay all taxes on the land above described, payable during the times that said party of the second part’s right continues, and upon its failure to pay taxes of any year on or before the 15th day of December of the year in which said taxes become due and payable, the said party of the second part shall have the right to’ pay said taxes and any sum or sums so expended, together with six per cent, per annum interest thereon, shall constitute a lien upon the land above described in favor of the said party of the second part, which lien shall be enforcible through the chancery court of Washington county, Mississippi.” One-half of the total consideration for the conveyance was paid in cash, and the remainder was agreed to be paid in one and two years as evidenced by two promissory notes secured by express vendor’s lien, and certain provisions of the contract regulated the manner in which the timber might be cut and also at the -same time preserve sufficient security for the unpaid purchase money. One clause of the contract expressly provides: “That the timber is sold for the purpose of being cut, and the said party of the'second part has a right to cut- same free from the lien of the purchase money in the manner hereinbefore provided for.” It appears that at the time the conveyance was executed the timber was assessed along with the land to appellee. After the execution of the timber deed, the board of supervisors separately assessed the timber to the appellant. This was done without the consent and against the wish of appellant. Appellee paid the [196] taxes for the year 1914, while appellant Calhoun Wilson was required to pay the same for the year 1913. There is an agreement in the record that, at the time of the execution of the timber, deed, neither of the parties had actual knowledge of the enactment of chapter 89, Laws of 1912, providing for a better assessment roll for assessing realty. The question presented is: Who is liable for the taxes on the timber for the years 1913 and 1914, the only tax that had accrued at the time this suit was filed? The answer to this question depends upon the proper construction of that clause of the conract hereinabove quoted — the express stipulation in reference to the taxes. The agreement, in our opinion, contemplated and means that appellee, as landowner, was to pay all lawful taxes upon the land and timber. At the time of this agreement, the timber was a part of the realty and assessed along with and as a part of the regular assessment of appellee’s lands. The value of the timber then constituted a component part of the taxable valuation of the land. There is no agreement by the parties that the timber is to be separately assessed, and Mr. Wilson by his contract obtained only a qualified or limited interest in the timber purchased. It will be noted that five hundred acres of the land was to be returned at the expiration of the year 1913, a little more than one year after' the date of the contract, and five hundred acres were to he returned each year thereafter. It was reasonable for appellant to require appellee to pay the taxes on the land with all of its fixtures and all the elements of value that conspired to make up the grant total valuation of the land on the assessment roll. There would he no good reason for requiring the landowner to pay upon his own land, the mere soil, in which appellant had ho interest. There could in no event be any obligation upon Mr. Wilson to pay the taxes on appellee’s lands. If appellee, however, should fail to pay the taxes on its lands or any part thereof, a sale [197] of the land with the timber affixed would place the timber rights of appellant in jeopardy. Under this particular contract there might be difficulty in assessing the timber each year separately from the land. At the expiration of the first year the timber on five hundred acres of the land would be removed, and, accordingly, all the timber could not equitably be assessed against appellant for a longer period than the first year. At the expiration of the second year, the timber upon the second five hundred acres would be cleared, and the land turned back to the grantor. If appellant for any reason failed to cut any of the timber required to be cut during any one year, the uncut timber by the terms of the contract reverted to the landowner along with the land, and the grantee is thereafter forbidden to enter for the purpose of further cutting. The very nature of the contract then suggests that the parties in the clause in controversy used the word “land” in the sense in which the term is generally employed, as meaning, not only the soil, but the timber thereon and everything affixed thereto. “In this state, for more than thirty years, and since the opinion of this court in Harrell v. Miller 35 Miss. 700, 72 Am. Dec. 154, it 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.’ ” McKenzie v. Shows, 70 Miss. 388, 12 So. 336, 35 Am. St. Rep. 654. Our court in the later case of Fox v. Lumber Co., 80 Miss. 1, 31 So. 583, observed that: “Trees growing or standing upon land are not distinguishable in their character of real estate from the soil itself, until they are actually severed 'from the soil. ” ' The contract before us grants rights and imposes obligations upon both parties, and under the express terms of the contract it was the duty of the appellee to [198] pay all taxes. The learned chancellor reached- a different conclusion, and his decree is, accordingly, reversed, and the cause remanded. It will be observed that this is in no wise a controversy between the revenue authorities and the parties to this litigation, but an issue between the parties themselves after all lawful taxes have been paid. Reversed and remanded.