Frank Hitch Lumber Co. v. Brown

75 S.E. 714, 160 N.C. 281, 1912 N.C. LEXIS 152

• Court: Supreme Court of North Carolina
• Decided: September 11, 1912
• Status: Published

Opinion

Walker, J.,

after stating the case: There was error in the refusal to give the prayer for instructions. The defendant testified that he had bought the logs from White. This was the statement of a fact, and not a conclusion of law as to the construction of the timber deed. It may be that he referred to the timber deed as conveying the logs, but it does not so appear. The jury might well have inferred that White had sold him the logs independently. Besides, White said to him: “The time is now out, and it all belongs to me. I sell you the land and everything there is on it.” “I told Mr. White about the logs and stuff, and he said he sold me his entire holdings.” This surely was some evidence of a sale of tbe logs. They were personal property, the trees having been severed from the land and converted into saw-logs. A parol conveyance was sufficient to pass the title. Wall v. Williams, 91 N. C., 477. If White sold the logs to defendant, it can make no difference that it was done by parol and was not inserted in the deed, it not being necessary that the sale of the logs should be in writing. Nissen v. Mining Co., 104 N. C., 309.

The timber cut and not removed after the time fixed by the contract had expired belonged to White, who had the right to sell it to the defendant. This is settled by numerous cases. Hornthal v. Howcott, 154 N. C., 228; Bateman v. Lumber Co., 154 N. C., 248; Bunch v. Lumber Co., 134 N. C., 116; Corey v. Lumber Co., 140 N. C., 462; Hawkins v. Lumber Co., 139 N. C., 160; Strasson v. Montgomery, 32 Wis., 52. The evidence of a sale to defendant, which was disregarded by the learned judge, if again offered, must be submitted to another jury, with proper instructions as to its legal effect.

New trial.