Mayes, J.,
delivered tlie opinion of the court.
On March 15, 1892, George W. and Victoria Guy, for a consideration of $200, receipt of which is acknowledged, conveyed to the Norwood & Butterfield Lumber Company by warranty deed all the green pine timber on a certain tract of land, which is described in the deed. The Norwood & Butterfield Lumber Company subsequently conveyed this timber to the Butterfield Lumber Company; hence this suit against it. In 1906, Guy brought this suit in the chancery court of Lincoln county, praying that the title of the lumber company under the deed be canceled. It is alleged in the bill that the lumber company, under the deed, only obtained title to the timber on condition that it cut and remove same from the land in a reasonable time. It is also alleged that the lumber company had long since been notified to cut and remove the timber, but had not done so, and more than a reasonable time had elapsed within which it had the right to cut the timber, and, having failed and refused to do so, its right is forfeited. It is also alleged that Guy is'the owner of the land on which the timber stands and is nourished, that the land is useless to him so long as the timber is permitted to stand there, and the right asserted by the lumber company to go upon the land and cut the timber whenever it might choose to do so, together with the deed which they have to the timber, casts a cloud on his title, and he claims the right to have the' deed canceled. In the deed no such rights as are set forth in the bill of complaint are to be found. The deed is a simple conveyance by warranty in fee simple of the timber, without time limit or conditions. In every essential necessary to convey a fee interest in the trees, the deed conforms to the requirements of the statutes.
The relief sought by complainant’s bill is without authority; but we think it untenable and against right. No topic in the law has been the subject of a greater variety of decisions than the one involved in this suit. Each case, in a large measure, must rest on the interpretation of the particular contract under which [373]*373it arises, since nearly every contract contains different terms. We can derive little benefit by a resort to tlie authorities of other states, because of the conflict of decisions. The only safe rule for this court to follow is to give effect to the contracts which the parties themselves have entered into, interpreted according to the law of this state as shown by former decisions dealing with this character of deed. The precise question presented has never been decided in this state. No ground for equitable relief is shown by the mere fact that the party invoking the aid of the court has made an improvement contract. There must be something more than this before there is any ground for equitable relief. An examination of the authorities leads us to the conclusion that the confusion- which has come into- the law upon this subject arises out of the fact that these contracts have been held in some states to convey chattel interests, and in others to vest an interest in the realty. Many states hold that a valid contract for the sale of timber can be made by parol, being a sale of personal property. The earlier cases seem to be to this effect, and hence by those courts which followed this line of authority it was held that where there was a sale of timber, with no time specified for the removal, it being a sale of personalty merely, and not an interest in the realty, there was an implied condition on the part of the seller and purchaser that the timber should be removed within a reasonable time.
Since the case of Harrell v. Miller, 35 Miss., 701, 72 Am. Dec., 154, it has been uniformly held in this state that the sale of timber conveyed an interest in realty. In the case of Harrell v. Miller, on the question of whether or not the sale of growing trees is a sale of an interest in land or a mere chattel, it is said: “Upon this subject there is much diversity of opinion, both in the decisions in England and in this country. Several of these decisions from highly respectable sources hold growing trees to be mere chattels, and that contracts for the sale of them •are not within the statute. But many other cases hold this to be parcel of the land, and within the statute; and this opinion [374]*374appears to be more in accordance with principle and established legal distinctions.” To the same effect is the case of McKenzie v. Shows, 70 Miss., 388, 12 South., 336, 35 Am. St. Rep., 654. In the case of Fox, Tax Collector, v. Pearl River Lumber Company, 80 Miss., 1, 31 South., 583, this court said: “Trees are a part and parcel of the land upon which they are growing or standing; for the term land’ embraces, not only the soil, but its natural productions, and trees growing or standing upon land are not distinguishable in their character of real estate from the soil itself until they are actually severed from the soil. By the common law, also, several sorts of estates or interests, joint or several, may exist in the same fee, as that one person may own the ground or soil, another the structures thereon, another the minerals beneath the surface, and still another the trees and wood growing thereon.” It is thus seen, from the former decisions of this court, that while it is recognized that there may be different ownerships in real estate, according to its different character, trees, land, etc., yet the fact that its ownership may be diverse does not change its character as real estate until actually severed. This being the case, a fee-simple title can be made in one character of real estate as well as another. It was as lawful and binding to make a fee-simple title to the trees forming a part of this land as it would have been to make a deed to the entire real estate, including the land.
No question of public policy is involved in this deed, so as to avoid if. The owner of the land was the owner in fee, and he might carve it up into as many different sorts of estates as the land was susceptible of, and make a good and valid deed in fee simple to each. If he has done so, and finds it inconvenient or improvident, the courts will not destroy the property rights of his vendees in order to relieve him from his own improvidence. In the case of Magnetic Ore Co. v. Marbury Lumber Company, 104 Ala., 465, 16 South., 632, 27 L. R. A., 434, 53 Am. St. Rep., 73, it is held that “a conveyance without condition or [375]*375reservation of the saw timber standing on certain land vests absolute title in the trees, independent of the land itself, and such title is not lost or forfeited in favor of a subsequent grantee of the land, whose deed contains an express reservation of such trees, by the fact that they were not severed within a reasonable time.” And the court further said that, before it should be held that timber should be removed within a reasonable time, where a purchaser obtains a deed to it without condition or reservation as to the time within which it shall be removed, there ought to be some cogent reason compelling such a conclusion or decision, ,so strong as to amount to an established rule of property, before such contention should be adopted as the law. We can put our view of this ease in no more succinct form or in stronger language than is used in the Alabama case above cited. In the case of Hall v. Gardiner, 89 Miss., 588, 43 South., 2, a consideration of the question presented here was expressly pretermitted. The court said: “We propose to decide, in this case, nothing except what this instrument presents for decision.
Free access — add to your briefcase to read the full text and ask questions with AI
Mayes, J.,
delivered tlie opinion of the court.
On March 15, 1892, George W. and Victoria Guy, for a consideration of $200, receipt of which is acknowledged, conveyed to the Norwood & Butterfield Lumber Company by warranty deed all the green pine timber on a certain tract of land, which is described in the deed. The Norwood & Butterfield Lumber Company subsequently conveyed this timber to the Butterfield Lumber Company; hence this suit against it. In 1906, Guy brought this suit in the chancery court of Lincoln county, praying that the title of the lumber company under the deed be canceled. It is alleged in the bill that the lumber company, under the deed, only obtained title to the timber on condition that it cut and remove same from the land in a reasonable time. It is also alleged that the lumber company had long since been notified to cut and remove the timber, but had not done so, and more than a reasonable time had elapsed within which it had the right to cut the timber, and, having failed and refused to do so, its right is forfeited. It is also alleged that Guy is'the owner of the land on which the timber stands and is nourished, that the land is useless to him so long as the timber is permitted to stand there, and the right asserted by the lumber company to go upon the land and cut the timber whenever it might choose to do so, together with the deed which they have to the timber, casts a cloud on his title, and he claims the right to have the' deed canceled. In the deed no such rights as are set forth in the bill of complaint are to be found. The deed is a simple conveyance by warranty in fee simple of the timber, without time limit or conditions. In every essential necessary to convey a fee interest in the trees, the deed conforms to the requirements of the statutes.
The relief sought by complainant’s bill is without authority; but we think it untenable and against right. No topic in the law has been the subject of a greater variety of decisions than the one involved in this suit. Each case, in a large measure, must rest on the interpretation of the particular contract under which [373]*373it arises, since nearly every contract contains different terms. We can derive little benefit by a resort to tlie authorities of other states, because of the conflict of decisions. The only safe rule for this court to follow is to give effect to the contracts which the parties themselves have entered into, interpreted according to the law of this state as shown by former decisions dealing with this character of deed. The precise question presented has never been decided in this state. No ground for equitable relief is shown by the mere fact that the party invoking the aid of the court has made an improvement contract. There must be something more than this before there is any ground for equitable relief. An examination of the authorities leads us to the conclusion that the confusion- which has come into- the law upon this subject arises out of the fact that these contracts have been held in some states to convey chattel interests, and in others to vest an interest in the realty. Many states hold that a valid contract for the sale of timber can be made by parol, being a sale of personal property. The earlier cases seem to be to this effect, and hence by those courts which followed this line of authority it was held that where there was a sale of timber, with no time specified for the removal, it being a sale of personalty merely, and not an interest in the realty, there was an implied condition on the part of the seller and purchaser that the timber should be removed within a reasonable time.
Since the case of Harrell v. Miller, 35 Miss., 701, 72 Am. Dec., 154, it has been uniformly held in this state that the sale of timber conveyed an interest in realty. In the case of Harrell v. Miller, on the question of whether or not the sale of growing trees is a sale of an interest in land or a mere chattel, it is said: “Upon this subject there is much diversity of opinion, both in the decisions in England and in this country. Several of these decisions from highly respectable sources hold growing trees to be mere chattels, and that contracts for the sale of them •are not within the statute. But many other cases hold this to be parcel of the land, and within the statute; and this opinion [374]*374appears to be more in accordance with principle and established legal distinctions.” To the same effect is the case of McKenzie v. Shows, 70 Miss., 388, 12 South., 336, 35 Am. St. Rep., 654. In the case of Fox, Tax Collector, v. Pearl River Lumber Company, 80 Miss., 1, 31 South., 583, this court said: “Trees are a part and parcel of the land upon which they are growing or standing; for the term land’ embraces, not only the soil, but its natural productions, and trees growing or standing upon land are not distinguishable in their character of real estate from the soil itself until they are actually severed from the soil. By the common law, also, several sorts of estates or interests, joint or several, may exist in the same fee, as that one person may own the ground or soil, another the structures thereon, another the minerals beneath the surface, and still another the trees and wood growing thereon.” It is thus seen, from the former decisions of this court, that while it is recognized that there may be different ownerships in real estate, according to its different character, trees, land, etc., yet the fact that its ownership may be diverse does not change its character as real estate until actually severed. This being the case, a fee-simple title can be made in one character of real estate as well as another. It was as lawful and binding to make a fee-simple title to the trees forming a part of this land as it would have been to make a deed to the entire real estate, including the land.
No question of public policy is involved in this deed, so as to avoid if. The owner of the land was the owner in fee, and he might carve it up into as many different sorts of estates as the land was susceptible of, and make a good and valid deed in fee simple to each. If he has done so, and finds it inconvenient or improvident, the courts will not destroy the property rights of his vendees in order to relieve him from his own improvidence. In the case of Magnetic Ore Co. v. Marbury Lumber Company, 104 Ala., 465, 16 South., 632, 27 L. R. A., 434, 53 Am. St. Rep., 73, it is held that “a conveyance without condition or [375]*375reservation of the saw timber standing on certain land vests absolute title in the trees, independent of the land itself, and such title is not lost or forfeited in favor of a subsequent grantee of the land, whose deed contains an express reservation of such trees, by the fact that they were not severed within a reasonable time.” And the court further said that, before it should be held that timber should be removed within a reasonable time, where a purchaser obtains a deed to it without condition or reservation as to the time within which it shall be removed, there ought to be some cogent reason compelling such a conclusion or decision, ,so strong as to amount to an established rule of property, before such contention should be adopted as the law. We can put our view of this ease in no more succinct form or in stronger language than is used in the Alabama case above cited. In the case of Hall v. Gardiner, 89 Miss., 588, 43 South., 2, a consideration of the question presented here was expressly pretermitted. The court said: “We propose to decide, in this case, nothing except what this instrument presents for decision. This is not the case of a grant by A., owning both the land and the timber thereon, of the timber in fee simple, without qualifications. We will construe that sort of instrument when the case arises. This is not the case of a deed giving the grantee as long as he wishes in which to remove the timber, nor the case of a deed giving the grantee the right to commence cutting when he pleases. This instrument is peculiar in its terms and express in its provisions.” The case of Gex v. Dill, 86 Miss., 10, 38 South., 193, presented a question distinct from the one involved here. The terms of the grant in the Gex ease showed that the grantor “granted, bargained, leased, and conveyed certain described lands for the purpose of boxing, working, and using said timber for turpentine purposes,” and there was a time-limit feature of the contract within which this right should be exercised. That contract did not convey a fee simple to the trees, as is the case of the contract we are now considering. In the case of Patterson v. Graham, 164 Pa., 234, 30 Atl., 247, it is held that [376]*376“a purchaser may buy growing timber and hold it, just- as he might buy and hold land, if he so frame his contract. In such a case he could remove it when he chose, and the vendor would have no right to quicken him by notice.”
The practical effect of the bill is to ask the court to write into the deed what it is claimed was the intention of the parties as the legal sequence of the contract made, though the instrument itself is silent as to any such intention. If the conditions sought to be ingrafted on this contract by the complainant are to be put there, it must be done by the court writing into the deed for the benefit of one of the parties a clause which is at variance with his own contract and destructive of the property right of the other party, which property right was bought from, and consideration paid to, the party asking to have same canceled. The interest of the purchaser of this timber under his deed has no less claim to the protection of the law than the interest which the seller retains in the soil. The seller of this timber seeks to haye the court do that which is in plain conflict with the rights which he has conveyed. By warranty deed he has sold this timber, received money for it, and now seeks to breach his own warranty by a proceeding in an equity court to cancel his deed, and declares that his vendee did not get what he warranted him ho would convey. There is no justice nor equity in the contention. If he desired to limit the title which he conveyed, he should have placed it in the contract. If it had been his purpose to grant him a license merely to enter the land and cut the trees, his contract should have been drawn so as to express this intention. Not having done so, it is not for us, at his instance, to give to this contract an intention which deprives the vendee of his property and is contradictory of the terms of the deed made by the vendor.
There is no law restricting the right of all persons to mako contracts to suit themselves, when the contract violates no law. The safety of commercial transactions depends upon this. Should courts undertake, because of improvidence, to set aside [377]*377■contracts wbicb are lawful, they would invade personal rights - and disturb and destroy the safety of- business transactions. When parties have made lawful contracts in language leaving no doubt as to the intention, there is no ground for any interference by the courts but the contract roust' be enforced as written. This case might have presented a different question, had the complainant prayed for partition of the property, instead of seeking to have the defendant’s deed canceled as a cloud on 'his title and the right to the trees forfeited. The reporter is ■directed to set out the deed in full in the report of the case.
It follows that the decree of the chancellor, overruling the demurrer, is reversed, demurrer sustained, and the bill dismissed.
Reversed.