Tremaine v. . Williams , 144 N.C. 114 ( 1907 )

The plaintiff's grantor, James, M. Williams, and the defendant entered into the following contract, 20 April, 1905:

I. James M. Williams, have agreed to let John W. Williams (115) put a steam mill on my land near Hallsville, Duplin County, N.C. and John W. Williams is to pay me $1.50 per thousand for pine timber the same to be measured at the mill by the Doyle rule as it is delivered there before any is sawed; and John W. Williams may keep said mill there for twelve months, with privilege of five years, provided he pays for the timber as cut, at no time to have on hand over 30,000 feet of pine timber unpaid for. And J. W. Williams is to pay for cypress logs $2 per thousand, and shall not keep on hand more than 20,000 feet unpaid for at any time, and what is held unpaid for shall be subject to the debt for the price agreed upon, and said James M. Williams may sell the same within sixty days from the time of measurement if J. W. Williams fails to pay for it. The undersigned parties to contract do agree to above conditions. JAMES M. WILLIAMS. J. W. WILLIAMS.

This agreement, duly probated, was recorded in the office of register of deeds for Duplin County, 15 January, 1906. On 18 January, 1906, said James M. Williams and others executed to the plaintiff a deed for the timber upon two tracts of land described therein, one for several tracts combined into one tract of 753 acres, the other 97 9/10 acres, all lying in Duplin County, which deed was recorded 20 January, 1906. The complaint alleges that the defendant is wrongfully cutting timber on aforesaid premises, and asks for damages and a restraining order. The answer admits that the plaintiff is owner of the timber on the land described in his deed, and that the defendant is cutting it, but avers that under the above agreement with one of plaintiff's grantors, J. M. Williams, the defendant is entitled to cut the timber, paying (116) plaintiff therefor at the rate specified in the agreement between Williams and the defendant when he took his deed. The order of the court allowed the defendant to saw up all logs on land severed from the land and remove the timber, but enjoined the cutting of any more logs to the hearing. The defendant appealed.

Standing trees are a part of the realty, and can be conveyed only by such an instrument as is sufficient to convey any other realty. Ward v. Gay,137 N.C. 399; Drake v. Howell, 133 N.C. 165; Green v. R. R, 73 N.C. 524;Mizell v. Burnett, 49 N.C. 249; s. c., 69; Am Dec., 744. The agreement between J. M. Williams and defendant is not sufficient to convey the timber. It contains no operative words or words of conveyance. This defect is fatal, and as to realty cannot be helped out by parol (Ward v.Gay, supra) nor by the prior registration of the defective instrument. When the grantee in a conveyance of realty has it recorded, his title cannot be affected by any notes of a prior unrecorded conveyance (if there had been such), nor by notice that another is in chaser, however, full and formal, will supply the place of registration." Quinnerly v. Quinnerly 114 N.C. 145. Of course, if the instrument recorded is not a conveyance, there has been no prior registration of a conveyance.

Even if the agreement between Williams and defendant had contained words of conveyance, it was void for lack of description of the tract upon which the timber stood. There was no offer to show that Williams owned only on tract, or that the timber was on the tract where the engine stood. On the contrary, it was alleged and admitted that (117) there were several tracts. The answer having admitted the ownership of the timber by plaintiff under his deed from J. M. Williams, we cannot understand how the defendant can assert any right to cut it by virtue of his agreement with J. M. Williams.

The title to the timber in the plaintiff being admitted, the agreement is merely a personal covenant. It is certainly not a covenant running with the lands, which besides, is not claimed to have passed to the defendant.

It is not controverted that the money for the logs already sawed, and for logs on hand which the defendant is permitted to saw up. is to be paid to plaintiff as the price named in the contract with Williams. The order restraining the defendant from cutting any more trees embraced in the conveyances to the plaintiff is

Affirmed.

Cited: Manufacturing Co. v. Rosey, Post, 372; Piano Co v. Spruill,150 N.C. 169; Wood v. Lewey, 153 N.C. 403; Burwell v. Chapman, 159 N.C. 212;Buchanan v. Clark, 164 N.C. 71; Bank v. Cox, 171 N.C. 81; Allen v.R. R., 171 N.C. 341.