Carder v. Matthey

32 S.E.2d 640, 127 W. Va. 1, 1944 W. Va. LEXIS 64

• Court: West Virginia Supreme Court
• Decided: March 21, 1944
• Docket: 9510
• Status: Published

Opinions

Fox, Judge:

On July 18, 1921, Edgar Matthey and R. J. Matthey, his wife, conveyed to Russell G. Carder a tract of ninety-three acres of land situate in Doddridge County, subject to certain exceptions and reservations set out in the deed, covering coal and natural gas, and the timber standing and being on said land. The reservation and exception as to the timber reads as follows:

“There is reserved and excepted from this conveyance the following: * * *

“Third: All saw timber, except what is in the cleared land, with the right to set a saw-mill on said premises and manufacture said timber into ■lumber and to move same off in a reasonable time after cut and sawed, but the said party of the second part is to have three thousand feet of saw timber out of said timber herein reserved and when said second party clears any of said timber land, he shall give notice to the said parties of the first part their heirs or assigns, and they shall remove said timber in a reasonable time or forfeit the right to said timber on such ground, cleared.”

There is little, if any,’ dispute as to occurrences relating to the removal of the timber, subsequent to the date of the conveyance aforesaid. We may take the testimony of the plaintiff as the basis of our decision. According to that testimony, defendant, Edgar Matthey, sold some rig timber from said land some ten or fifteen years prior to the date when such testimony was taken, in March, 1942, and the plaintiff had sold some mine props from the lands about five years prior to the date of his testimony. The plaintiff testifies that he said nothing about the removal of the timber in question until about five years after the date of his deed, at which time he asked Matthey to remove the timber; and was told that he, Matthey, would cut the timber as soon as he could get a sale for it. The plaintiff was then asked, “When was the last time you talked with Mr. Matthey, about this timber?”, to which he replied, “The last time we started in was last spring, I believe it was last March. I was out and talked to him. I saw him that time also at Mr. Sha-han’s store.” At one time the plaintiff contemplated clearing some part of the ninety-three acres and gave no tice to Matthey of his intention. Matthey later requested the- plaintiff to deaden the timber on the land he proposed to clear, and leave it there until the following fall, and was then told by plaintiff that he would not be able to clear the land that spring, and the matter of timber removal at that time seems to have been dropped. Other conversations in relation to the removal of the timber are mentioned, the last in March, 1941. At or near that time Matthey sent plaintiff word that he would buy the ninety-three acres of land, and they discussed the matter of a sale, but could not agree on price. Then the plaintiff states in his testimony, “After we couldn’t get any ways near together on the price for the farm, I began to talk to him about the timber and trying to get together to make some kind of an agreement between us, that way save any trouble with-a-suit or something, and I stated to Mr. Matthey, that for about the first Five (5) years that I hadn’t said anything to him in regard to removing the timber, and after that I had tried at various times from then on up to the present to get him to remove the timber and I asked him if that wasn’t right and he said it was.” This conversation occurred in March, 1941, and this suit was instituted on September 15 of the same year. We have referred to the testimony of the plaintiff to show that there had been repeated conversations and negotiations between him and Edgar Matthey, beginning five years after the date of the deed of July 18, 1921, and continuing at intervals to within six months of the institution of this suit; and as showing that never, at any time prior to the institution of this suit, did plaintiff claim ownership of the timber in question. On the contrary, as late as March, 1941, plaintiff was trying to get some agreement with the defendant Matthey as to when the timber would be removed, and what timber would be taken. At no time was Matthey given specific notice to remove the timber, or given any intimation that plaintiff claimed ownership thereof.

On September 15, 1941, this suit was instituted in' the Circuit Court of Doddridge County. The bill proceeds upon the theory that “the defendant excepted and reserved from the conveyance of July 18, 1921, a defeasible fee in only that part of said timber which was saw timber at the date of the said deed, with the implied consideration that said excepted and reserved timber would be removed by said defendant from said land within a reasonable time after the date of said deed;” and then alleges plaintiff’s ownership of the timber now on said land. It further avers that defendant Edgar Matthey claimed to have the right, under said exception and reservation, to enter upon said land and cut and remove the timber of every size and description therefrom; and also that the reservation and exception standing upon the records constitute a cloud upon the title of plaintiff to his land, and the timber thereon, and tend to depreciate the value thereof and render plaintiff’s title thereto unmarketable. It is also averred that Matthey threatened to enter immediately upon said land and cut and remove the timber. The prayer of the bill is that “the aforesaid saw timber reservation contained in said deed be decreed to have been determined and defeated, and that the defeasable title of the defendants thereunder be decreed to be determined and defeated; that said exception and reservation be cancelled and held to be null and void and of no effect whatever, and as a cloud upon the title to said real estate of your plaintiff may be removed.” The prayer further asks for an injunction restraining the removal of the timber.

The defendants’ answer, while admitting certain allegations of the bill, particularly their claim to the timber and their intention to remove the same, denies in effect that anything therein contained furnishes any basis for a decree which would deprive the defendant, Edgar Matthey, of the right to cut and remove the timber excepted from the conveyance of July 21, 1921. Testimony was taken and the case submitted! for final hearing. On November 24, 1942, the circuit court entered a decree granting to plaintiff the relief prayed for, and specifically decreed that “the defeasable fee title of the defendants Edgar Matthey and R. J. Matthey, which was reserved and excepted as the third item of reservations, in that certain deed between the said Edgar Matthey and R. J. Matthey as grantors and. the said Russell G. Carder as grantee, bearing date on the 18th day of July, 1921, * * * has been determined and defeated, and all of the right and title of the defendants which was excepted and reserved by them, in the aforesaid timber have been determined and defeated, and the title in and to all of the timber now upon the aforesaid land, together with the right to remove said timber, is now vested in the plaintiff, Russell G. Carder; that the aforesaid exception and reservation of timber is now null and void and of no effect whatsoever as a claim and cloud upon the title of the plaintiff Russell G. Carder to the aforesaid timber; that the defendants Edgar Matthey and R. J. Matthey, each of them and their agents, servants and employees, be and they are hereby forever and perpetually enjoined, inhibited and restrained from removing and from cutting from the aforesaid tract of land any trees and/or timber whatsoever”. From that decree we granted this appeal.

The question of the right of the owner of land to have removed therefrom timber which he has conveyed, or which has been excepted and reserved in a conveyance to him, and where in either case no time limit for such removal is specified, has been before this Court in a number of cases. In Keystone Lumber & Mining Co. v. Brooks, 65 W. Va. 512, 64 S. E. 614, it was held that, “In case of a deed conveying legal title to timber, though the deed contemplates removal of timber, there being no limit of time for removal and no clause of forfeiture for failure to remove, title to the timber is not lost to the purchaser for such failure.” We assume the same rule would apply where, as in this case, a grantor excepted from his conveyance the title to the timber on land conveyed. The case cited above did not undertake to fix a time within which the timber would have to be removed, but later cases adopted the rule that, “Ordinarily if a deed for timber does not prescribe the time within which it is to be manufactured into lumber, and the lumber removed from the land, the grantee must remove it within a reasonable time, or lose the benefit of his purchase.” Hill v. Vencill, 90 W. Va. 136, 111 S. E. 478; Williams v. McCarty, 82 W. Va. 158, 95 S. E. 638, 100 S. E. 565; Stump V. Moore, 104 W. Va. 513, 140 S. E. 480; Joyce v. Gibson, 106 W. Va. 221, 145 S. E. 279; Jones v. Gibson, 118 W. Va. 66, 188 S. E. 773. In the Vencill case it was held, “Although such a deed vests title to the timber - in a grantee, it does so only upon condition that he remove it within a reasonable time. What is a reasonable time depends upon the facts and circumstances of each case requiring its application.” It appears, therefore, to be settled law that a conveyance of timber, or an exception thereof, vests in the grantee, or the person excepting the timber, the right to remove the same within a reasonable time, where no specific time therefor is fixed, but this rule should apply only to cases where there are no intervening circumstances, contract provisions or equities which would make its application result in an injustice. It will be noted that in most of the cases cited above the right of the original owner of the timber to remove the same was upheld, the circumstances requiring such action.

The plaintiff’s bill proceeds upon the theory, and the decree of the court holds, that what the defendants excepted in their deed of July 18, 1921, was a de-feasible fee subject to be determined and defeated upon their failure to remove the timber excepted within a reasonable time. Obviously, this theory is based upon the cases cited above, but its application clearly takes from one party title to property and vests it in another; and whatever else it may be called, such procedure amounts to a forfeiture. The very language of the deed! in question treats the failure to remove the timber from cleared land as a forfeiture of the right to remove. In Stump v. Moore and Hill v. Vencill, supra, loss of right to remove timber is referred to and treated as a forfeiture. Aside from these considerations, how can the plaintiff get title to the timber in question except through the forfeiture of the right of ¡the defendants to remove the same? The timber never was conveyed to the plaintiff. It was expressly excepted from the conveyance of the land on which it stands.The plaintiff gets title, if at all, through the operation of the condition implied in law, that the timber so excepted will be removed within a reasonable time; but that result can only be reached through the forfeiture of the right which defendants originally had to cut and remove the same.

It is familiar law that forfeitures are not favored in courts of equity. We have only to cite Hukill v. Meyers, 36 W. Va. 639, 15 S. E. 151; Craig v. Hukill, 37 W. Va. 520, 523, 16 S. E. 363; Headley v. Hoopengarner, 60 W. Va. 626-646, 55 S. E. 744; Pyle v. Henderson, 65 W. Va. 39, 63 S. E. 762; Newton v. Kemper, 66 W. Va. 130, 66 S. E. 102, to show that not only will a court of equity ordinarily refuse to act affirmatively in the enforcement of a forfeiture, but will often relieve against it. “A condition subsequent defeating the title upon nonperformance must be clearly expressed or arise by necessary implication from the language used in the deed.”; “After an estate has been vested by apt and proper deed the courts will always construe the deed so as to prevent a forfeiture or defeasance of the estate conveyed thereby, if possible.” Engel v. South Penn Oil Co., 106 W. Va. 339, pts. 2 and 3 syl., 146 S. E. 385.

We ;do not question the rule laid down in Hill v. Ven-cill and subsequent cases cited above; but even so, the question ‘of whether a person should lose his right under the rule announced therein depends.on the facts of the case. No fixed period of time is or can be laid down for all cases. In the case at bar approximately twenty years passed from the date of the d'eed in question and the institution of this suit, if we had before us a simple exception of the timber, without specification of time for removal, and nothing more, it might be said that, under the rule announced in the cases above con sidered, the defendants had lost title thereto; but is this such a case? In the first place, the exception itself •is uncertain as to when it was contemplated that the timber should! be removed. Construing it one way, we would be justified in holding that the removal was required to be made within a reasonable time; but there is a provision therein which leaves this construction in doubt, because, under that provision, the removal of the timber could be required at any time the owner of the surface desired to clear any of the land, upon giving notice of his intention to do so; and it is then provided in such a case that failure to remove timber within a reasonable time would forfeit his right to said timber on the ground cleared. Nothing is said about the forfeiture of any timber for failure to cut and remove the same. Then the parties from time to time negotiated as to the removal of the timber. Some five years after the date of the deed plaintiff says he requested that the timber be removed. After that date Matthey sold some rig timber, and apparently no objection was made thereto. At some other date the plaintiff removed some mine props. At one time the plaintiff contemplated clearing some of the land and notified Matthey of his intention, but nothing resulted from this because plaintiff decided later not to clear. We are justified in saying that many conversations took place between these parties in relation to the removal of the timber, continuing to within six months of the date of the institution of the present suit. The plaintiff says he was, at that late date, trying to get an agreement with defendant as to the removal of the timber. At no time prior to the institution of this suit did plaintiff make any claim of ownership. We think the record shows that plaintiff acquiesced in the failure to remove the timber in such a way as to bar him from maintaining his present suit at this time. We think the circumstances surrounding this entire transaction required that defendant be given notice of the plaintiff’s claim, and an opportunity to remove the timber, before plaintiff was entitled to main tain a suit, the effect of which, we think, would be to forfeit a valuable right vested in the defendants under the deed they executed.

The decree complained of must be reversed and the case remanded to the circuit court for further proceedings. As the institution of this suit furnishes to the defendants sufficient notice of the plaintiff’s claim to the timber in question, the defendants should not be permitted to further delay the removal of the timber, beyond the time reasonably necessary for the operations requisite to its removal, manufacture into lumber, and sale. That is a matter which the circuit court can determine, either upon the record as it is now made up, or upon such further proof as the parties interested may present. The question of what timber defendant Mat-they is entitled to remove is also one which will have to be determined by the trial court.

We reverse the decree of the Circuit Court of Dod-dridge County, and remand the cause to said court for further proceedings not inconsistent with this opinion.

Reversed and remanded.