Timber Co. v. . Wells , 171 N.C. 262 ( 1916 )

Upon these facts the court being of opinion that the entire amount was due and owing to C. B. Page, so entered its judgment, and defendant R. A. Wells excepted and appealed. After stating the case: Our decisions hold that standing timber is realty, subject to the laws of devolution and transfer applicable to that kind of property, and that timber deeds of this character, as ordinarily drawn, convey an estate of absolute ownership, defeasible as to all timber not cut and removed within the specified period. Williams v. Parsons,167 N.C. 529; Midyette v. Grubbs, 154 N.C. 85; Lumber Co. v. Corey,140 N.C. 467.

The cases on the subject are to the effect, further, that a stipulation of the kind now presented, providing for an extension of the time within which the timber must be cut, is in the nature of an option, and it is held by the great weight of authority that contracts of this character do not of themselves create any interest in the property, but only amount to an offer to create or convey such an interest when the conditions are performed and working a forfeiture when not strictly complied with. Waterman v. Banks,144 U.S. 394; Hacher v. Weston, 197 Mass. 143; Gaston v. SchoolDistrict, 94 Mich. 502; Newton v. Newton, 11 R. I., 390; Bostwick v. Hess,80 Ill. 138.

Our own decisions are in general approval of these principles: Ward v.Albertson, 165 N.C. 218; Winders v. Kenan, 161 N.C. 628; Bateman v.Lumber Co., 154 N.C. 248; Hornthal v. Howcott, 154 N.C. 228; and from this it follows that where the time first provided in one of these timber deeds and paid for has passed, and it becomes necessary for the grantee to hold by reason of the performance of the stipulation for an extension, that the estate or interest arises at the time the conditions are complied with, and, in the absence of any provision in his deed to the contrary, the price paid belongs to him who then has the title and from whose ownership the interest is then created. The option or privilege obtained, to the extent of the right conferred, is a contract attendant upon the title, and, as stated, unless otherwise specified in the deed conveying the title, the price for the interest arising on proper performance of the conditions will inure to the owner. It is from his estate that the interest passes, and he must receive the purchase price.

It was urged on the argument that the judgment could be upheld on the principle that gives the owner of the reversion the right to (265) receive the rental accruing after title descended, both under the principles of the common law and of our statute applicable to the question. Holly v. Holly, 94 N.C. 670; Rogers v. McKenzie,65 N.C. 218; Revisal 1905, sec. 1989. Neither the decisions nor the statute are directly authoritative, for the reason that we have held that the interest here conveyed is not a leasehold interest, but an estate in fee. There is, therefore, an absence of the tenure required to constitute rent.Hawkins v. Lumber Co., 139 N.C. 160; Bunch v. Lumber Co., 134 N.C. 116.

The position, however, affords a strong analogy in support of our construction of the contract and its effect upon the rights of the parties. It is suggested that the actual amount in controversy being only $27, the Superior Court is without original jurisdiction to determine it. The controversy, however, involves an action in the nature of a bill of interpleader to determine the rights of two adverse claimants to a fund, and being an exercise of the powers of the court enforcible by bill in equity under the old system, the Superior Court properly assumed jurisdiction to hear and determine the matter. Fidelity Co. v. Jordan,134 N.C. 236; Berry v. Henderson, 102 N.C. 525; Fisher v. Webb, 84 N.C. 44. There is no error, and the judgment of the court below is

Affirmed.

Cited: Lumber Co., v. Comrs., 173 N.C. 121 (1j); Mizell v. Lumber Co.,174 N.C. 71 (2cc, 6cc); Jerome v. Seltzer, 175 N.C. 395 (2c);Ricks v. McPherson, 178 N.C. 159 3d; Morton v. Lumber Co., 178 N.C. 166 (1c, 2c); Hudson v. Cozart, 179 N.C. 250 (2c); Lumber Co. v. Valentine,179 N.C. 425 (1c, 6c); Dill v. Reynolds, 186 N.C. 296 (3p); Bennett v.Lumber Co., 191 N.C. 427 (3cc); Mote v. Lumber Co., 192 N.C. 463 (1c, 2c);Bank v. Lumber Co., 193 N.C. 759 (3c); Trust Co. v. Frazelle, 226 N.C. 728 (6c).