Lewis v. Bennette , 193 S.W. 233 ( 1916 )

Having disagreed with the majority of the court in overruling appellee's motion for rehearing, I dissent, as I believe the judgment of the lower court should be affirmed.

This cause was reversed and rendered by this court by opinion delivered December 11, 1916, and is again before us on appellee's motion for rehearing, and, as stated above, a majority of the court has overruled same. The facts are recited at length in the opinion delivered, and need not be more fully dealt with here. The controversy between the parties to this suit can be made clear by a recital of the following facts: Banks Griffith Son owned in fee a tract of timbered land in Montgomery county. On May 30, 1907, for a recited consideration of $10,500, they sold certain pine timber on this land to M. R. Talley, and gave him certain rights by a duly executed instrument, in this language:

"All of the pine timber ten inches in diameter and larger than that size two feet above the ground, standing and growing (on the described land). The said M. R. Talley shall have sir years from the date hereof in which to cut and remove said timber from said land, and all timber not so cut and removed from said land within said period of six years from the date hereof shall revert to us."

The grantee, Talley, is also given additional rights and privileges to enable him to cut and remove the timber within the time limit of six years specified. On July 26, 1907, Banks Griffith Son sold the land to appellee, Bennette, giving to him their general warranty deed thereto. This deed, after describing the property conveyed, contains the language which forms the basis for this suit, viz.:

"Save and except, however, from this conveyance, all the pine timber ten inches in diameter and larger than that size on all of said 1,136 acres of land, which pine timber we have heretofore sold and conveyed toM. R. Talley, and this conveyance is also made subject to certain rights and privileges in the way of right of ingress and egress upon said land and rights of way over and across the same, and certain leasehold on a part thereof for the erection of a sawmill, lumber yard and tenement houses and other improvements, to the said Talley, as all of which will fully appear from our certain deed and bill of sale to the said M. R. Talley of date May 30, 1907, to which reference is here made for a full recital of all of said rights and reservations." (Italics ours.)

The timber described in the conveyance to M. R. Talley was not all cut from the land within the six years, and at the expiration of that period there remained on the land a portion thereof. The rights of Talley, under his agreement and purchase, were all forfeited, and he ceased to have any rights in the property at the expiration of the sixyear period, and he is not, nor is any one under or through him, asserting any rights in any of the property in this suit. It is conceded that the timber standing on the land at the end of the six-year period reverted, as to the Talley contract, and the sole question involved in this appeal is, To whom did it revert? Who became the owner of this timber when the rights of Talley expired?

It is earnestly contended by appellant, who stands in the rights of Banks Griffith Son, that in the deed to appellee, the timber described in the Talley deed was absolutely excepted and reserved by the grantors, and that this estate continued in them, and when the timber reverted under the Talley contract, it reverted to Banks Griffith Son, and is now owned by their trustee in bankruptcy, appellant. Opposed to this, appellee contends that all the estate held by Banks Griffith Son passed to him by their deed to him, and upon the conclusion of the rights of Talley, the full estate and ownership of the entire property was vested in him. The rights of the parties on this appeal are fully presented by these opposing questions, and there are no collateral questions involved.

It is true that after the conveyance to Talley and before the six-year period had expired, Banks Griffith Son became subrogated to the rights of Talley, but no right is claimed on this appeal by appellant, because of or in any way connected with such abrogation, and it therefore has no relevancy to the case as presented here. It is also true that after the subrogation of Banks Griffith Son to the rights of Talley, they obtained from appellee a contract extending the rights held by Talley for two years beyond the sixyear period, but by the judgment of the trial court this contract was pronounced invalid, and that action of the trial court is not complained of or asked to be revised, and it is therefore not necessary or proper for us to consider on this appeal that instrument for any purpose.

In the opinion delivered in this case a majority of the court holds that the conveyances from Banks Griffith Son to Talley and appellee were free from ambiguity, and I agree to that portion of the opinion. Being free from ambiguity, it is not necessary for me to discuss the extraneous matters that could be called in aid in construing them if they were in any way ambiguous. They will be construed as meaning what the words used therein ordinarily import, and given that effect Cravens v. White, 73 Tex. 577, 11 S.W. 543, 15 Am. St. Rep. 803. I need not resort to the rule of construction most favorable to the grantee. Cartwright v. Trueblood, 90 Tex. 530, 39 S.W. 930.

If in the deed from Banks Griffith Son to appellee there is an express reservation of the full title to the timber, such reservation would operate as a constructive severance of the timber from the land, and leave the title to the land in appellee, and the title to the timber in Banks Griffith Son, subject to the rights of Talley in both. Lodwick Lbr. Co. v. Taylor, 100 Tex. 270, 98 S.W. 238,123 Am. St. Rep. 803; Chapman v. Dearman, 181 S.W. 808. If this is the correct interpretation of that deed, then, upon the reversion of the timber under the Talley holding it would remain with the estate in the timber held in the deed by Banks Griffith Son, and appellant would become the owner. Such is the contention of appellant, and the court so held in its opinion delivered in this case, and in this holding I believe they are in error.

When Banks Griffith Son executed the conveyance to Talley, they were the owners of the full estate in the entire property dealt with, holding in fee. After that conveyance they remained the owners of the same estate, lessened only to the extent of the portion passing to Talley. When they sold to appellee, they sold all of their original holding, "save and except" that previously disposed of to Talley. This left them with no rights or estate in the property of any character. All incidents to the property, all appurtenances thereto, all rights therein, all ownership thereof held by Banks Griffith Son passed by the deed to appellee. In fact, the full estate in all of the property passed by this deed, "save and except" that already passed to Talley. The language used in the deed cannot be construed to constitute a reservation of any estate in Banks Griffith Son. There is no apparent attempt to reserve any portion of the estate to the grantors. The deed, by its plain language, limits the estate conveyed to that portion not before passed to Talley, but does not attempt to reserve anything to the grantors. The whole estate is conveyed, "together with all and singular the rights and appurtenances thereto in any wise belonging," excepting only such portion thereof as had previously passed to Talley. This is the only limitation upon the conveyance to the entire property, and is not a reservation of any interest to the grantors, but an exception of an estate in the whole, of which the grantors at the time had no interest, and which, but for the exception and limitation, would place the grantors in the attitude of selling and warranting the title to property they did not own and which they had previously sold.

The reversionary interest in the timber was an incident to the ownership of the land, and was held by Banks Griffith Son at the time they deeded the land to appellee, and could have been reserved to them and retained by them in that deed, but they make no such reservation, nor does any of the language employed in the deed indicate any such effort or intent. Being a part of the estate held by Banks Griffith Son at the time of their conveyance to appellee, and not being reserved to them in that conveyance, and that conveyance passing the full estate in the property "save and except" the rights held by Talley, "together with all and singular the rights and appurtenances thereto in any wise belonging," it follows, necessarily, that when Talley forfeited his rights, they reverted to appellee, who held the balance of the estate, "with all and singular the rights and appurtenances thereto." The right to the reversionary interest in the timber was a right belonging to the original fee-simple holder, and passed by the express language of the deed to appellants. Cartwright v. Trueblood, 90 Tex. 535, 39 S.W. 930; Arden v. Boone, 187 S.W. 997; Hancock v. Butler, 21 Tex. 804; Calder v. Davidson,59 S.W. 300; Schaffer v. Heidenheimer, 43 Tex. Civ. App. 366, 96 S.W. 61; Id., 101 Tex. 658; McDaniel v. Puckett, 68 S.W. 1007.

It follows from what has been said that in my opinion the judgment of the trial court was correct, and that the majority opinion is in error in its holding in this case. I therefore think that appellee's motion for rehearing herein should be granted, and the judgment of this court reversing and rendering this cause should be set aside, and that the judgment of the trial court should be in all things affirmed.