Ingram Day Lumber Co. v. Robertson

Smith, C. J., delivered the opinion of the court. The appellee exhibited an original bill in the court below against the appellant to recover the value of certain tim377 her cut anti removed by the appellant from the east half of section 16, township 6, range 14 west, in Hancock county. The cause was heard on bill, answer, and proof, and a decree was rendered in accordance with the prayer of the bill. The facts are practically undisputed, and are in substance as follows: In 1900, pursuant to permission so to do from the heads of families residing in the township as required by section 4159, Code of 1892, and with the approval of the board of supervisors, as required by section 4154, Code of 1892, the superintendent of public education of Hancock county, after due publication thereof, offered at public outcry to lease section 16, township 6, range 14 west, for a period of 15 years, and, G. W. Walker having bid two dollars and sixty cents per acre therefor, the highest bid made, a lease to the land was executed to him by the superintendent in an exchange for his 15 promissory notes, one due each year, aggregating the amount of his bid. The board of supervisors in authorizing and approving this lease, and Walker in accepting it, were of the mistaken opinion that the lessee of a sixteenth section has the right to cut and remove the timber therefrom for commercial purposes, which supposed right in the lessee influenced both the members of the board of supervisors in approving the lease and Walker in bidding for.it, though neither actually communicated that fact to the others, and there were no negotiations among any of the parties with reference thereto. What the superintendent of public education or the heads of families of the township thought about the lessee’s right to cut and remove the timber does not appear. The land at the time it was leased to Walker was valuable only because of the timber growing thereon; that is to say, there was no demand then for it for the purpose of being farmed or put to other similar use. Under chapter 41, Laws of 1898, which now appeal's as section 4702, Code of 1906 (section 7512, Hemingway’s Code), boai'ds of supervisors have the power to sell the timber on sixteenth sections without consulting the heads of families of the township. Walker — 378 — died without paying any of his notes executed by him for the lease of the land, and, pursuant to a bill in equity filed against his administrator and heirs at laiv for that purpose, the land was sold for the payment of the notes, and purchased by J. H. Moores. Before the sale to Moores was confirmed the board of supervisors at his request passed a resolution setting forth the leasing of the land to Walker, and that “whereas, said lands were and are only valuable for the lumber thereon, and the board and the lessee supposed the latter had the legal right to cut and remove said timber, and the purchase money given for said leases was based on the supposed existence of said right,” and directing the president of the board to execute a conveyance to J. H. Moores of “all the merchantable timber” thereon, “on the payment of one dollar cash and the payment of the amount of his bid for the unexpired lease of said George Walker.” The report of the commissioner appointed by the court to make the sale was confirmed by the court, the amount of his bid for the land was paid by Moores, and a deed thereto was executed to him by the commissioner, and the president of the board of supervisors, pursuant to the order of the board hereinbefore referred to, executed to Moores an instrument purporting to convey to him the merchantable pine timber on the land, with the right to remove it therefrom during the life of the lease. . In December, 1914, the lease to the east half of the section having by mesne conveyances from Moores become vested in the appellant, the board of supervisólas passed an order reciting the conveyances hereinbefore referred to, and that the appellant proposed to pay “the sum of three hundred and seventy-five dollars in cash and surrender the remaining years of the term of 15 years granted as aforesaid in which to cut and remove said timber, if, in consideration thereof, the said board will now make and enter an order extending the time for cutting and removal of said timber, .and for entering upon the said lands for the said purpose for seven years from date; that is to say, the merchantable*' timber on said east half of said section — 379 — 16, township 6 south, range 14 west, to the said Ingram Day Lumber Company for said period in consideration of the cancellation by them of the remaining time before mentioned under said old lease and sale and the cash payment aforesaid; . ... said proposal of Ingram Day Lumber Company be and the same is hereby accepted and the president of this board is hereby authorized and directed to make, execute, and deliver for the consideration aforesaid (three hundred and seventy-five dollars) a deed to all the merchantable timber on the said east half of the section 16, township 6 south,' range 14 west, and granting unto said Ingram Day Lumber Company or their assigns a period of seven years from this date in which to cut and remove said timber all as by statute in such cases is provided. Provided that nothing herein shall be construed to confer a greater right on the said Ingram Day Lumber Company than was conferred by the original orders and conveyances herein above referred to, the sole purpose of this order and the deed herein authorized to be executed being to extend the time granted by the above-mentioned conveyance for the cutting and removing of the timber from said land.” The president of the board of supervisors, pursuant to this order, which ivas made about six months before the expiration of the lease, conveyed the merchantable timber on the land to the appellant witli the right to remove it within seven years from December 8, 1914. The timber was cut and removed by the appellant between January 1 and May 1, 1915. The recovery awarded the appellee was for the value of the timber at the time it ivas cut and removed, with 6 per cent, interest to the time of the trial. The contentions of counsel for the appellant in effect are: (a) That it was the intention of the board of supervisors in approving the execution of the lease to convey, and of Walker in accepting the lease to purchase, the timber on the land, and the board had the right to effectuate this intent by thereafter conveying the timber to Walker’s successor in title, (b) The instrument executed to the appellant by the president of the board of supervisors conveyed — 380 — the timber to the appellant for a new and valuable consideration, to wit, three hundred and seventy-five dollars in cash, and surrender by the appellant of the unexpired portion of the lease, (c) The appellee is not entitled to interest on the value o'f the timber cut and removed. 1.' Leaving out of view the questions raised by counsel "cr the appellee relative to the competency of the evidence, and the effect of the declaration on the minutes of the board of supervisors that the members of the board and Walker thought that the lessee of a sixteenth section would have the right to cut and remove the timber therefrom, it is manifest that the contract intended to be entered into by all of the parties thereto ivas not a sale of the timber, but a lease of the land. That the members of the board and Walker thought that Walker would have the right under the lease to cut the timber on the land for commercial purposes neither conferred nor authorized the board to confer that right upon him, for the rights and obligations of the lessee of a sixteenth section are fixed by law, and can be neither added to nor subtracted from by a board of supervisors, except as may be provided by law. But it is said by counsel for the appellant that a court of equity would have reformed the lease so as to make it convey to the appellant the right to cut and remove the timber from the land. Consequently the board of supervisors had the right to execute the conveyance of the timber, for the reason that it could do voluntarily that which a court could have coerced it into doing. If a court of equity would have granted the relief here claimed it would necessarily have in effect canceled the lease, and caused a conveyance of the timber to be executed; for, if the lessee should retain the lease, no reformation thereof could vest him with the right to cut the timber for commercial purposes, for the right of a lessee of a sixteenth section to cut and remove timber therefrom is fixed by law, and no court has the power to increase it. So that even if the board of supervisors here could have done voluntarily that which a court of equity could have coerced it into doing, at most it — 381 — could only have conveyed the timber on the land to the lessee on the surrender by him of his lease to the land, and this was not done, for, as hereinbefore set forth, the lessee held on to his lease, and obtained from the board a conveyance of the timber. But a court of equity would not have reformed the instrument executed and delivered to Walker by the superintendent of public education so as to make it a conveyance of the timber growing on instead of a lease of the land. The mistake which occurred here, and which the conveyance by the- board of the timber was intended to correct, was as to the legal effect of the lease; in other words, a mistake of law, and not of fact. That the mistake was one of law does not necessarily mean that it could not have been corrected in a court of equity, for, within certain limits, a court of equity will correct such mistakes. Without attempting to lay down a universal rule by which it can be determined whether a given mistake of law can or cannot be corrected in a court of equity, it will be sufficient to say that: “The rule is well settled that a simple mistake by a party as to the legal effect of an agreement which he executes, or as to the legal result of an act which he performs, is no ground for either defensive or affirmative relief. . . ' . If, on the other hand, after making an agreement, in the process of reducing it to a written form the instrument, by means of a mistake of law, fails to express the contract which the parties actually entered into, equity will interfere with the appropriate relief, either by way of defense to its enforcement, or by cancellation, or by reformation, to the same extent as if the failure of the writing to express the real contract was caused by a mistake of fact. In this instance there is no mistake as to the legal import of the contract actually made; but the mistake of law prevents the real contract from being embodied in the written instrument.” 2 Pomeroy’s Equity (4th Ed.) sections 843 and 845; Sparks v. Pittman, 51 Miss. 511; Goodbar v. Dunn, 61 Miss. 618; Hall v. Lafayette County, 69 Miss. 529, 13 So. — 382 — 38; Wise v. Brooks, 69 Miss. 891, 13 So. 836; Canning Co. v. Ott, 88 Miss. 771, 41 So. 378; Hunt v. Rhodes, 1 Pet. 1, 7 L. Ed. 27, 28 L. R. A. (N. S.) 799, note. If Walker had purchased the timber in accordance with the statute providing therefor, and the instrument by which his purchase was reduced to written form, because of a mistake as to its legal effect, had failed to convey the timber, a court of equity would have corrected it so as to conform to the agreement actually made, provided a court of equity has the power to reform a contract made by a board of supervisors, as to which we express no opinion; but the mistake here, as heretofore pointed out, was not of that character. The agreement made was for, and the instrument executed pursuant thereto was, a lease, and that the parties thereto may have been mistaken as to its legal effect, and would not have made it had they properly un-derly understood it, is no ground for equitable relief; for: “If an agreement is just Avhat the parties intended it should be, no matter What led to it; there can be no interference with it.” Hall v. Lafayette County, supra. “It is not what the parties would have intended if they had known better, but what did they intend at the time, informed as they were.” Wise v. Brooks, supra. Hall v. Lafayette County, supra, relied on by the appellant, is not in conflict but is in accord herewith. In that case Hall, a county treasurer, and his sureties, as the court was careful to point out, contracted to give and thought they had given “a bond sufficient in its penalty and its term to cover all moneys that should be in his hands from every source,” but, because of a mistake as to the legal effect of the bond given, that contract was not carried out; consequently the decree of the chancery court reforming the bond so as to malee it conform to the contract pursuant to which it was given was affirmed. 2. The instrument executed to the appellant by the president of the board of supervisors in December, 1914, by the express provision of the order of the board under which it was executed and accepted, conferred no “greater — 383 — right” to cut and remove the timber than was conferred by the original lease and subsequent agreement with Moores, except that the time within which the timber could be cut and removed was thereby sought to be extended seven years. In other words, the agreement extended the time for cutting and removing the timber, provided the appellant then had the right under the lease and subsequent agreement with Moores to cut and remove the timber during the life of the lease, and, as hereinbefore set forth, neither the lease nor the subsequent agreement with Moores conferred on Moors and his grantees any such right. 3. The measure of damages for the conversion of property is the value of the property at the time of the conversion, with interest thereon to the time of trial. Hinds v. Terry, Walk. 81; Texada v. Camp, Walk. 150; Whitfield v. Whitfield, 40 Miss. 352; Bickell v. Colton, 41 Miss. 369; Jamison v. Moon, 43 Miss. 602; Taylor v. Morton, 61 Miss. 24. Affirmed.