Harrell v. Williams , 159 Ga. 230 ( 1924 )

Hines, J.

(After stating the foregoing facts.)

Hncler the view we take of this case, it is unnecessary to ' decide whether the written instrument'under which the defendants claim conveyed to them absolute title to the timber on the land described therein. The maker of this instrument clearly granted to the defendants a license to cut and remove this timber. Baxter v. Mattox, 106 Ga. 344 (32 S. E. 94); Perkins v. Peterson, 110 Ga. 24 (35 S. E. 319); Johnson v. Truitt, 122 Ga. 327 (50 S. E. 135); North Georgia Co. v. Bebee, 128 Ga. 563 (57 S. E. 873); Lott v. Denton, 146 Ga. 363 (91 S. E. 112). The right to cut.and remove this timber, not being a mere license resting in parol, but being in writing and for value, the licensee stands upon the footing of a purchaser for value, and the right or license is not revocable at the will of the grantor, his heirs or assigns. Civil Code (1910), § 3645; Hiers v. Mill Haven Co., 113 Ga. 1002 (39 S. E. 444). No time being specified within which the timber was to be cut and removed, it was incumbent upon the defendants to cut and remove the same within a reasonable time from the date of the instrument; and on their failure to do so their interest would cease and determine. McRae v. Stillwell, 111 Ga. 65 (36 S. E. 604, 55 L. R. A. 513); Goette v. Lane, 111 Ga. 400 (36 S. E. 758); Shippen L. Co. v. Gates, 136 Ga. 37 (70 S. E. 672); Lott v. Denton, supra. What would be a reasonable time for so doing was a question of fact to be decided in the light of all the facts and circumstances of the transaction. Shippen L. Co. v. Gates, supra. The written instrument involved in this case does not grant to the defendants a mere option to purchase this timber. Ellis v. Bryant, 120 Ga. 890 (48 S. E. 352). So whether this instrument possesses the dignity of a conveyance of this timber to the defendants, whereby title thereto was vested in them, is immaterial in this ease, as this writing gives to them an irrevocable right to cut and remove the timber.

But it is insisted that this instrument is not binding upon the maker or his assignee, because of lack of mutuality, and because the defendants did not cut and remove this timber within a reasonable time. If there had been originally any want of mutuality, it was cured by the filing.of the answer of the defendants to plaintiff’s petition, in which answer they ,set up and assert their right to cut and remove this timber. Perry v. Paschal, 103 Ga. 137 (29 S. E. 703); Sivell v. Hogan, 119 Ga. 168 (46 S. E. 67); Ellis v. Bryant, supra. Whether the defendants had delayed an unreasonable time in exercising their right to cut and remove the timber was a question of fact to be decided in the light of all the facts and circumstances of the transaction. Shippen L. Co. v. Gates, supra. We can not say that the trial judge erred in finding that the defendants had not forfeited their right to cut and remove this timber by their delay, under the facts and circumstances disclosed in the record. The burden was on the plaintiff, who asserted the termination of the defendants' right to cut and remove this timber, to show that the defendants had waited an unreasonable time in exercising this right. We think the trial judge was authorized to find that the plaintiff had not carried this burden.

The defendants introduced evidence to the effect that the maker of this instrument and the defendants agreed that the cutting of this timber should commence when the defendants had cut the timber at their location on Horse Creek, which they were sawing at the date of the execution of this document, and when they were ready to move their sawmill; that the maker stated he did not care when they began to cut it; that the question arose whether this stipulation should be stated in the writing; and that the scrivener, a justice of the peace, whom both parties had selected to draft this instrument, advised them that it was not necessary, in consequence of which advice the stipulation was omitted. In their answer the defendants set up these'facts and sought to have the instrument so reformed as to embrace this stipulation. Plaintiff objected to the admission of the above evidence, on the.grounds that it added to and varied the written agreement, and that there was no evidence authorizing a finding that there had been a mistake of law or.fact on the part of the defendants which would authorize a reformation of the instrument. The court admitted the evidence. In view of the construction we have put on the contract between Parker and the defendants, and of our rulings above as to the fight of the defendants to cut and remove the timber, we do not think that reformation of this instrument was necessary for the protection of their rights; and .hence we do not think it is necessary to de-' termine whether a case for reformation was made under the pleadings and evidence in the record. Clearly some of the evidence objected to was admissible on the question whether the defendants had forfeited their right to cut and remove the timber by unreasonable delay; and as the objection was to the evidence as a whole, we do not think it was good when some part of the evidence was competent and admissible.

The plaintiff alleges that the contract of January 10, 1922, under which the defendants claim the timber in dispute, was void because at the time of its execution the maker was mentally incapable of transacting business. Assuming that the evidence introduced by the plaintiff on this subject would have authorized the court to grant an injunction, if the same had not been rebutted, the defendants introduced evidence tending to prove that the maker of this contract had sufficient mental capacity to execute the same. Under this evidence, we can not say that the trial judge abused his discretion in refusing to grant an injunction.

Judgment affirmed.

All the Justices concur.