HOUSTON OIL CO. OF TEXAS v. BOYKIN et al., 206 S.W. 815

GREENWOOD, J.

This case involves the construction of the following written instruments: “State of Texas, County of Jasper. “This memorandum of agreement between Jake Norsworthy, Cyrus Boykin and Ms wife, Malinda Boykin, and Alfred MeEarlane’ and his wife, Paralee, witnesseth: That the said Jacob Norsworthy, Cyrus Boykin and his wife, Malinda, and Alfred MeEarlane and his wife,' Paralee, in consideration of the sum of $400 to them in hand paid by August Rinstrom, have bargained and sold to the said August Lin-strom all of the merchantable pine timber now standing and growing upon two hundred and twenty-five aeres of land in Jasper county, Texas, part of the Edward Good headright league. [Here follow field notes.] And the said Jack Norsworthy, Cyrus Boykin and his wife, Malinda, and Alfred MeEarlane and his wife, Pa-ralee, agree that the said Linstrom, his heirs, executors, and assigns, shall have liberty to go upon the said land to cut and fell said trees and to carry the same in such manner as shall be convenient to him. “Witness our hands this the 24th day of May, A.

D. 1900. Jack Norsworthy. “Malinda Boykin. “Cyrus Boykin. “Paralee MeEarlane. “Alfred MeEarlane.” “State of Texas, County of Jasper. “This memorandum of an agreement between Anthony MeEarlane and August Linstrom wit-nesseth: That said Anthony MeEarlane, in consideration of $50 to him in hand paid, by August Linstrom, have bargained and sold to August Linstrom all of the merchantable pine trees now standing and growing upon fifty acres of land in Jasper county, Texas, part of the Edwbrd Good headright league, and subdivision in a three hundred acre tract conveyed to Jack Norsworthy by Miss L. D. C.

Good. [Here follow field notes.] And the said Anthony MeEarlane agrees that the said August Linstrom, his heirs and assigns, shall have liberty to go upon said land to cut and fell said trees and cany the same away in such manner as shall be convenient to him. “Witness my hand this the 24th day of May, A.

D. 1900.’ Anthony MeEarlane. “Amanda MeEarlane.” The adjudged cases are generally in accord, and meet our full approval, in construing instruments like the above, which merely convey timber with a license to remove same, without stipulating the time within which it may or must be removed, as implying the removal of the timber within a reasonable time. 17 R. C. L. 1082; Montgomery County Devel. Co. v. Miller-Vidor Lumber Co., 139 S. W. 1020 (3).

The cases are in utmost conflict, however, in declaring the legal consequences of clauses in conveyances of growing timber, express or implied, for removal of the timber within a limited time, be it within a stipulated or reasonable term. Some of the decisions, notably in Alabama and New Hampshire, adopt the view that such a clause does not prevent an absolute title to the timber from passing to the ven-dee; the agreement to remove being interpreted as - a mere covenant of the vendee. Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 South. 858, 9 L. R. A. (N. S.) 663, 123 Am. St. Rep. 58; Hoit v.

Stratton Mills, 54 N. H. 109, 20 Am. Rep. 119; Pierce v. Finerty, 76 N. H. 38, 76 Atl. 194, 79 Atl. 23, 29 L. R. A. (N. S.) 547. Other decisions declare that a timber deed or contract with such a clause passes to the vendee a present title to the timber defeasible by failure to remove the timber within the limited time. Beauchamp v. Williams (Tex. Civ. App.) 115 S. W. 133; Macomber v. Railway Co., 108 Mich. 491, 66 N. W. 376, 32 L. R. A. 102, 62 Am. St. Rep. 713; Lumber Co. v. Corey, 140 N. C. 462, 53 S. E. 300; McRae v. Stilwell, 111 Ga. 65, 36 S. E. 604, 55 L. R. A. 513.

Many cases, and perhaps the weight of modern authority, support the rule that timber deeds and contracts, containing time limits for the removal of the timber, pass no title whatever, save to so much of the timber as the vendee may remove within the time limited. Carter v. Clark & Boice Lumber Co. (Tex. Civ. App.) 149 S. W. 278; North Texas Lumber Co. v. McWhorter (Tex. Civ. App.) 156 S. W. 1153, 1154; Mengal Box Co. v. Moore, 114 Tenn. 596, 87 S. W. 415, 4 Ann. Cas. 1047, and note, page 1050; Young v. Camp Mfg. Co., 110 Va. 678, 66 S. E. 843.

The reason for the rule last stated is well expressed in the opinion of Justice Levy in the case of Carter v. Clark & Boice Lumber Co. (Tex. Civ. App.) 149 S.

W. 278, in the following language: “Having agreed to a limitation upon the right of removal, then the right of the purchaser to the timber is acquired by the act of removal and appropriation; and, as appropriation of the timber as such is dependent upon the removal from the soil, the intention of the parties would appear to be a contract of sale of such timber only as is removed within the time limited.” As several opinions have pointed out, it does not make much practical difference, with respect to the rights and remedies of the parties, whether we consider that the purchaser under these deeds and contracts acquires a present defeasible title or acquires title to only the timber removed.

King v. Merriman, 38 Minn. 47, 35 N. W. 570. The far-reaching difference is between the cases holding either of the doctrines last mentioned and the cases holding, on the contrary, that the purchaser gets an absolute title to all timber described in the granting clause of the deed or contract, and that the removal clausé operates only as a covenant. After deliberate consideration, we find ourselves unable to concur in the conclusion that the removal clauses should be construed as mere covenants of the vendees.

In Alabama, the Supreme Court refused to extend relief to one who had allowed the time limit to expire without removing timber contracted to him, for the reason that the vendee could not enter the land to remove the timber without committing a trespass and equity’s process and powers could not properly be so employed as to aid in a trespass. Mt. Vernon Lumber Co. v. Shepard, 180 Ala. 148, 60 South. 825. It would seem useless to affirm that one has a title and then declarei the-title incapable of enforcement or protection in law or equity.

The Supreme Court of New Hampshire refused to award damages to a timber vendee, against a vendor, who refused to allow him to cut timber, after the expiration of the contractual time limit, notwithstanding the court was committed to the doctrine that the clause fixing the time for removal of the timber did not prevent the vendee from being still invested with absolute title, and, in refusing such damages, the court indicated that it might not be disposed to adhere to the doctrine had it not become a rule- of property in that state. Pierce v. Finerty, 76 N. H. 38, 76 Atl. 194, 79 Atl. 23, 29 L. R. A. (N. S.) 547.

It cannot be denied that, if the rule be adopted that the vendee of timber, under deed or contract fixing a limited time for removal, express or implied, has an absolute title to timber not removed, after expiration of the time limit, this title must be treated as an empty and barren one, because nonenforceable, or it must be treated as entitling its holder to the timber on compliance with such conditions as may be determined to be just and equitable.

We are not at all inclined to adopt that construction of contracts which would give to parties nonenforceable titles, and we do not believe that it would comport with the true intention of the parties for us to adopt a construction which would make the ultimate rights of each party ascertainable only after judicial inquiry. Moreover we cannot sanction any rule which in its nature invites and encourages differences and litigation. It is the plain duty of this court to interpret these contracts, like all others, in such manner as will best carry out the intentions of the parties.

And we conclude that no rule will better accomplish that end than the one already approved by some of our Courts of Civil Appeals, under which title passes, under contracts like those set out herein, to only so much timber as may be removed within a reasonable time. The jury found that a reasonable time expired before the institution of this suit to enjoin the timber cutting by the assignee of the vendee in these contracts, and this finding has been approved by the Court of Civil Appeals.

The evidence supports the findings, and it follows that the judgments of the district court and of the Court of Civil Appeals should be affirmed; and it is so ordered. <g£»For other cases see same topic and KEY-NÜMBER in all Key-Numbered Digests and Indexes