Sumter Lbr. Co. Inc. v. Skipper , 183 Miss. 595 ( 1938 )

I cannot agree with the construction put upon the contract as stated in the opinion of Judge ANDERSON. The contract cannot be segregated, but must be taken as an entirety, and its meaning determined from all of its parts construed together, giving to its words their plain and commonly accepted meaning.

The effect of the majority opinion is to read out of the original contract the words, "It is understood and agreed that the Sumter Lumber Company will release the land as quickly as possible before the expiration of ten years, in the event the timber cannot be removed before the expiration of the lease." Leaving the most vital and important part of the contract out of the provisions for the extension, it is manifest that the parties intended that the provisions of the contract as to the ten-year period would be carried forward into the extension period if it should be impossible — using the word "impossible" in its reasonable acceptation — to remove the timber within the ten-year period. It put the parties in the absurd position of contracting during the ten-year period that the land could be released as quickly as possible before the expiration of the ten-year period; but if it was not removed during that ten-year period, then the obligation to remove the timber expeditiously would be eliminated, and the appellant given the privilege forever to use the land of the appellee for a mere nominal consideration for the support and growth of its timber, and entirely deprive the appellee of any right to use the land so long as the appellant saw proper to pay $25 a year for the use of 275 acres of land. The decision here, in my opinion, goes in the teeth of the fundamental rules for the construction of contracts, and accomplishes an absurd result, promoting injustice, rather than justice.

In Gulf S.I.R. Co. v. Patten, 180 Miss. 756, 178 So. 468, at page 762 of 180 Miss., at page 469 of 178 So., the Court said: "In construing deeds, the intention of the parties is sought to be effectuated, of course, but this intention must be found in the language of the instrument; so that effect must be given, if possible, to each item of the written contents, and no item shall be stricken or rejected so long as it may be harmonized with the other items." Citing Dunn v. Stratton, 160 Miss. 1, 7,133 So. 140, in which it was held that: "Courts, in construing deeds, must effectuate intention of parties. Intention of parties to deeds must be found in writing by way of complete delineation of description on face of deed or by dependable references therein made which, when applied, render delineation complete. No item included as part of description in deed should be rejected as erroneous or varied so long as it is reasonably possible to make all items harmonize."

In Goosey v. Goosey, 48 Miss. 210, it was held that: "It is a cardinal rule in the construction of written instruments to give the words their ordinary and grammatical meaning, and then gather from the entire instrument the intent of the parties. The whole instrument must be considered in determining the meaning of its separate parts, so that, if practicable, harmony and congruity may be attained, ex antecedentibus et consequentibus. The rule, that if there be earlier clauses in a deed repugnant to later clauses, the latter shall prevail, does not apply where the inconsistent clauses can be made to harmonize with the general purpose of the parties as derived from the whole instrument."

In Isler v. Isler, 110 Miss. 419, 70 So. 455, it was held that where "it appears by contract that a party intends to bind himself, trivial inaccuracies will be disregarded and if the intention of the parties can be ascertained, courts will effectuate that intention."

In Jones v. Mississippi Farms Co., 116 Miss. 295, 76 So. 880, it was held that the "intention of the parties must be drawn from the words of the whole contract, and if, viewing the language used, it is clear and explicit, then the court must give effect to this contract unless it contravenes public policy. If the language is doubtful, the court will look to the surroundings of the parties and to the construction placed upon the contract by the parties during its existence in order to learn the intention of the parties."

In United States F. G. Co. v. Parsons, 154 Miss. 587,122 So. 544, it was held that the court "must, if possible, ascertain and give effect to mutual intention of parties." And in Mississippi P. L. Co. v. Kusterer Co., 156 Miss. 22, 125 So. 429, it was held that every word and part of a contract should be given effect if possible. See, also, Tatum v. McLellan, 50 Miss. 1; Hart v. Gardner, 74 Miss. 153, 20 So. 877.

It is said in Judge ANDERSON'S opinion that the appellee, J.Q. Skipper, conveyed a fee simple title to the timber, quoting in support thereof Butterfield Lumber Co. v. Guy, 92 Miss. 361, 46 So. 78, 15 L.R.A. (N.S.) 1123, 131 Am. St. Rep. 540, and Nichols et al. v. Day, 128 Miss. 756, 91 So. 451. Neither of these cases is in point here. In Butterfield Lumber Co. v. Guy, supra, there was nothing in the contract with reference to the period of time in which to cut and remove the timber from the land, and the court held that there was a fee simple title to the timber there conveyed.

In Nichols v. Day, supra, the clause there involved with reference to the timber's removal was, "for a term of 10 years in which to remove in the event the same has not been removed by paying a penalty of 10 per cent. per annum for each renewal." The pertinent provision there was "in the event the same has not been removed by paying a penalty of 10 per cent.," etc. That is, if the timber for any reason whatever had not been removed by the end of the ten years specified therein, by paying a penalty of ten per cent. per annum it could be renewed. The contract in this case contains no conditions like the contract here before us.

In Finkbine Lumber Co. v. Saucier, 150 Miss. 446, 116 So. 736, it was held that the right to reversion of timber remaining on the land after expiration of the period of twenty years given purchasers of timber within which to remove same did not pass to grantee under the deed conveying the land with reservation of timber, since reservation excluded timber from description of property conveyed and showed intention on part of grantors not to convey it.

In Clark v. Ingram-Day Lumber Co., 90 Miss. 479, 43 So. 813, a person sold to the lumber company all saw log timber on certain lands, giving it three years in which to remove the saw logs. The lumber company sold its interest to a grantee who, at the expiration of the three years had not removed all the timber, but a large quantity had been cut and left on the land. The Court held that after the expiration of the time fixed by the contract the grantee had no further right on the premises or to the timber, whether standing, or cut and left lying upon the land.

In Rowan v. Carleton, 100 Miss. 177, 56 So. 329, it was held in a replevin by the owner of land for logs cut by the defendant, and left on the land, after the termination of the contract under which they were cut, mingled with logs cut from other lands, which the appellee had failed to remove, that in an action of replevin by appellant that the burden of proof was on the appellee to identify the logs cut from appellant's land, and failing to do this, appellant should recover all the logs lying upon his land after the expiration of the contract time. That in determining the rights of parties to a contract granting a period of four years to cut and remove timber it was held that saw logs were not manufactured articles, but belonged to the grantor when left on the land after the expiration of the time.

In Crorow Hardwood Co. v. Burks, 149 Miss. 327, 115 So. 585, it was held that the purchaser of standing timber did not receive such title as authorized its removal after expiration of period granted therefor. In Smith v. Salmen Brick, etc., Company,151 Miss. 329, 118 So. 179, it was held that where the time for removal of timber expires under a deed, the timber reverts to the grantor selling the land, and, on his death, to the heirs-at-law.

It has been universally recognized in this state that where timber was sold, to be removed within a given time, at the expiration of the time the timber remaining on the land belongs to the grantor. In such case the deed does not convey a fee simple title, but a qualified or conditional or limited fee, which is less than a fee simple.

The parties to the transaction here involved manifestly understood at the time of the execution of the contract that if an extension was granted, the conditions of the original contract would be carried into the granted extension of time; and any construction to the contrary is to involve a grantor in labyrinthine entanglements of technicality, resulting in injustice, rather than justice.

In the opinion written by Judge GRIFFITH, and concurred in by Judge McGEHEE and the CHIEF JUSTICE, it is said: "The conclusion must be that the possibility in mind is one which, having regard to the character of the timber, the quantity thereof, its location and accessibility, and the general market conditions appertaining throughout the country as affecting the lumber industry, would permit the lumber company, situated as it was in relation to the land, reasonable care and diligence being exercised, to remove the timber without loss of the value thereof in whole or in part — care being taken that the mere convenience of the lumber company, or its individual inability, growing out of its own internal difficulties, save as to accidents and the like beyond its reasonable control, are not to be considered."

I cannot concur in this opinion. When buying the timber at a nominal consideration the appellant agreed to free the land of the timber before the expiration of the ten-year period — "as quickly as possible." But in the event it could not be removed within that period, then the appellant had the right to continuous yearly extensions at a nominal sum (less than five cents an acre). This clearly meant that the appellant would be diligent to remove the timber. The record shows that it was clearly possible to remove the timber within that period. The parties did not say anything to the effect that the appellant should be able to make a profit in removing it. That construction injects a new and dangerous element into the law of contracts. It ignores entirely the right of the other party to make use of his property, and forces him to suffer by denial of his rights, so that his adversary may make a profit. Since when has it become the law that one party to a contract shall make a profit at the expense of the other? The granting of indulgence as to time is not a fact from which it may be inferred that the parties consider it an element of the contract. My brethren are not as clear and safe as they usually are. They seem to be in a fog of sophistry, unable to see clearly the effect of this decision.

I think fourteen years is too long a period, and indicates negligence, and indifference on the part of the appellant to the rights of the appellees. I also think that when J.Q. Skipper conveyed to the school and to his son, the right to further extensions ceased. He had a right to treat the time for removal as being exhausted and the contract forfeited, and his conveyances without reservation operated to terminate the right under the facts of the case.

In making a contract the appellant and the appellee did not contemplate the extension being granted because of market conditions; but the failure to remove within the period must be because of such conditions as make it reasonably impossible for the timber to be removed. The appellant is a large buyer of timber lands, has a mill with a capacity of a million feet a day, and is a large dealer in lumber; and of course, in some instances has bought unprofitable tracts of land for rights of way, and other conveniences, irrespective of lumber values. If profit making be an element in securing the non-performance of a contract, then it might be extended to other character of contracts, and the law would be put in confusion.

There is no question, on the facts of this record, that the lumber company could have removed the timber at any time during the fourteen-year period. In the last renewal, of course, the question arises as to whether the lumber company honestly made an effort to remove the timber, or whether it was making use of the appellee's land for the purpose of growing timber.

I think the judgment ought to be affirmed.