The opinion of the Court was delivered by
Mr. Justice Gage.
The appeal is from a decree of the Circuit Court made upon an agreed• statement of facts.' The facts all rest in record evidence.
The plaintiff is the admitted owner of the fee to the 157 acres of land involved. He also claims to be the owner of the growing timber upon the land; the defendants also claim tO' own the timber, and that is the issue betwixt them. The plaintiff sued to enjoin the defendants from cutting the timber; and the Circuit Court dismissed the complaint.
Let the exceptions, eight in number, be reported. We shall keep within them, and no more; for the appellant has argued but two questions.
The controversy arises out of these circumstances: Some 600 acres of land, of which that involved is a part, was owned by W. P. Melson. He died intestate and left six heirs at law. On August 23, 1904, they conveyed the fee of the land to Byron B. Moulton, who had married one of the heirs. On the same day Moulton executed to the heirs a declaration of trust, and four months thereafter the heirs
accepted the declaration. On March 21, 1906, Moulton conveyed to Freeman the timber growing on the lands, and limited the time for its removal to ten years from that date for the timber on swamp land, and five years for the timber on upland; the defendants claim under Freeman; on April 4, 1905, Moulton conveyed to one of the heirs at law, Pittman by name, the 157 acres involved in this controversy. On 16th October, 1909, Pittman conveyed to the plaintiff.
The pith of the Circuit decree is included in the six paragraphs at folios 80 to 85 of the case; let so much of it be reported. The Court there declares:
“It is admitted that the deed of the Melson heirs vested in Byron B. Moulton title to the land and-timber.”
We venture to think the fundamental mistake in the Circuit decree is that the Court regarded the several conveyances as legal titles, and judged the priorities accordingly.
1,2
The deed from the heirs to Moulton and the declaration of trust by Moulton were made on the same day; they constituted one transaction, and they must be read and construed together as one instrument of writing would be construed. The preface to the declaration of trust reads:
“Whereas, on August 23, 1904, Rufus G. Melson
et al.
* * * by paper deed made under their hands did convey to me, etc., * * * for the expressed consideration of * * * being the amount of outstanding liens and incumbrances against said property. * * * Now, know all men * * * I * * * declare,” etc.
The two instruments are thus joined together. The deed is in the usual formal words; it makes no' reference to timber; the expressed consideration is $1,750; the declaration of trust is unusual in expression, and it needs only to be reported.
If the declaration of trust had been written into the same paper with the deed, as ideally it was, then it is manifest
that the heirs only thereby vested in Byron B. Moulton title to both land and timber, but in trust.
It is true, one clause in the declaration of trust “saves and excepts therefrom all and singular the merchantable timber of every kind and description upon the said premises.” But a subsequent and closely following clause of the instrument, expressly referring back to the “timber hereinabove reserved” the trustee, “in order to aid and benefit the”
cestuis que trustent,
stipulated and declared that the timber would be sold by his instruction and through his agent, “and the proceeds thereof * * * paid over to the
cestuis que trustent.”
And by a yet subsequent clause of the instrument, the trustee declared he would cause the lands to be surveyed, appraised, and divided into separate parcels, and that he would make separate deeds thereof to each of the heirs, according to his or her allotment; that is to say, he would effect a partition.
It is true the trust instrument adds just thereafter the following words, to wit: “subject to the reservation of timber and rights of way hereinbefore made.” That is the reservation we before quoted. These words, however, but conform to the previous covenant of the trustee to sell the timber and pay the price to the beneficiaries; they do not exclude the timber from the beneficial interest of the
cestuis que trustent.
It is, therefore, perfectly plain from the whole two instruments, read as one, that Moulton was trustee of the title to land and timber; that the heirs at law, his wife one of them, were the
cestuis que trustent;
that the consideration expressed in the deed was “the amount of outstanding liens and incumbrances against the said property;” that the trustee was to pay the liens and incumbrances; that he did pay them by a sale of portions of the land; that he was then to sell the timber and pay the price of it to his
cestuis que trustent;
that he was last of all to divide the land betwixt the beneficiaries. The “reservation” of the timber in the
declaration of trust which we first referred to was in fact and in law no reservátion at all of any beneficial interest in Moulton, for Moulton concurrently therewith dedicated the timber by a trust to those who by the same instrument had equitable title to the land under the timber; it was a dedication to uses and not a reservation.
3, 4
In the next year after the transactions just referred to, to wit, after the execution of the two instruments of writing called the deed and the declaration of trust, Moulton proceeded to execute the trust by dividing the land betwixt the beneficiaries, and on the 4th April, 1905, he conveyed the land involved to Pittman, who was one of Moulton’s six children. Spivey took from Pittman. In that deed to Pittman is this clause: “Saving, excepting and reserving out of and from the operation of this deed all merchantable timber of every kind and description upon said premises, with all necessary rights of, entry and rights of way for man and teams, wagon roads and team roads, over and across said land for the cutting and removing of said timber.”
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The opinion of the Court was delivered by
Mr. Justice Gage.
The appeal is from a decree of the Circuit Court made upon an agreed• statement of facts.' The facts all rest in record evidence.
The plaintiff is the admitted owner of the fee to the 157 acres of land involved. He also claims to be the owner of the growing timber upon the land; the defendants also claim tO' own the timber, and that is the issue betwixt them. The plaintiff sued to enjoin the defendants from cutting the timber; and the Circuit Court dismissed the complaint.
Let the exceptions, eight in number, be reported. We shall keep within them, and no more; for the appellant has argued but two questions.
The controversy arises out of these circumstances: Some 600 acres of land, of which that involved is a part, was owned by W. P. Melson. He died intestate and left six heirs at law. On August 23, 1904, they conveyed the fee of the land to Byron B. Moulton, who had married one of the heirs. On the same day Moulton executed to the heirs a declaration of trust, and four months thereafter the heirs
accepted the declaration. On March 21, 1906, Moulton conveyed to Freeman the timber growing on the lands, and limited the time for its removal to ten years from that date for the timber on swamp land, and five years for the timber on upland; the defendants claim under Freeman; on April 4, 1905, Moulton conveyed to one of the heirs at law, Pittman by name, the 157 acres involved in this controversy. On 16th October, 1909, Pittman conveyed to the plaintiff.
The pith of the Circuit decree is included in the six paragraphs at folios 80 to 85 of the case; let so much of it be reported. The Court there declares:
“It is admitted that the deed of the Melson heirs vested in Byron B. Moulton title to the land and-timber.”
We venture to think the fundamental mistake in the Circuit decree is that the Court regarded the several conveyances as legal titles, and judged the priorities accordingly.
1,2
The deed from the heirs to Moulton and the declaration of trust by Moulton were made on the same day; they constituted one transaction, and they must be read and construed together as one instrument of writing would be construed. The preface to the declaration of trust reads:
“Whereas, on August 23, 1904, Rufus G. Melson
et al.
* * * by paper deed made under their hands did convey to me, etc., * * * for the expressed consideration of * * * being the amount of outstanding liens and incumbrances against said property. * * * Now, know all men * * * I * * * declare,” etc.
The two instruments are thus joined together. The deed is in the usual formal words; it makes no' reference to timber; the expressed consideration is $1,750; the declaration of trust is unusual in expression, and it needs only to be reported.
If the declaration of trust had been written into the same paper with the deed, as ideally it was, then it is manifest
that the heirs only thereby vested in Byron B. Moulton title to both land and timber, but in trust.
It is true, one clause in the declaration of trust “saves and excepts therefrom all and singular the merchantable timber of every kind and description upon the said premises.” But a subsequent and closely following clause of the instrument, expressly referring back to the “timber hereinabove reserved” the trustee, “in order to aid and benefit the”
cestuis que trustent,
stipulated and declared that the timber would be sold by his instruction and through his agent, “and the proceeds thereof * * * paid over to the
cestuis que trustent.”
And by a yet subsequent clause of the instrument, the trustee declared he would cause the lands to be surveyed, appraised, and divided into separate parcels, and that he would make separate deeds thereof to each of the heirs, according to his or her allotment; that is to say, he would effect a partition.
It is true the trust instrument adds just thereafter the following words, to wit: “subject to the reservation of timber and rights of way hereinbefore made.” That is the reservation we before quoted. These words, however, but conform to the previous covenant of the trustee to sell the timber and pay the price to the beneficiaries; they do not exclude the timber from the beneficial interest of the
cestuis que trustent.
It is, therefore, perfectly plain from the whole two instruments, read as one, that Moulton was trustee of the title to land and timber; that the heirs at law, his wife one of them, were the
cestuis que trustent;
that the consideration expressed in the deed was “the amount of outstanding liens and incumbrances against the said property;” that the trustee was to pay the liens and incumbrances; that he did pay them by a sale of portions of the land; that he was then to sell the timber and pay the price of it to his
cestuis que trustent;
that he was last of all to divide the land betwixt the beneficiaries. The “reservation” of the timber in the
declaration of trust which we first referred to was in fact and in law no reservátion at all of any beneficial interest in Moulton, for Moulton concurrently therewith dedicated the timber by a trust to those who by the same instrument had equitable title to the land under the timber; it was a dedication to uses and not a reservation.
3, 4
In the next year after the transactions just referred to, to wit, after the execution of the two instruments of writing called the deed and the declaration of trust, Moulton proceeded to execute the trust by dividing the land betwixt the beneficiaries, and on the 4th April, 1905, he conveyed the land involved to Pittman, who was one of Moulton’s six children. Spivey took from Pittman. In that deed to Pittman is this clause: “Saving, excepting and reserving out of and from the operation of this deed all merchantable timber of every kind and description upon said premises, with all necessary rights of, entry and rights of way for man and teams, wagon roads and team roads, over and across said land for the cutting and removing of said timber.”
The defendants rely on that clause to defeat Pittman’s right to the timber; and the Circuit Court so concluded. But the obvious purpose of the grantor was to follow the declaration of trust; it was to preserve in him the right to sell the timber and divide the proceeds betwixt the beneficiaries ; it was not to defeat Pittman’s equitable right created in her by the instruments before made. In equity, and in ideality, Pittman had the right to her share of the proceeds of sale of the timber, notwithstanding the quoted clause in the deed she took. The clause was in harmony with the entire transaction theretofore had, and not hostile to it. Now, then, the trustee plainly had the right to sell the timber to Freeman, or to anybody else, and to divide the proceeds betwixt the beneficiaries; that is what he undertook to do in the declaration of trust; and when he sold the timber to Freeman in March, 1906, he was but executing his trust.
And when the_ trustee did that, and had the timber been cut, and had the money been paid to the beneficiaries, then the trust would have been executed, and the transaction done. In this view it is not relevant to inquire whether Freeman had any notice of the declaration of trust for the trustee by the words of it had the power to sell the timber to him. It does not appear from the record what the trustee has completely done towards the performance of his trust; nothing appears except the things we have adverted to.
If the timber has not been cut, or some of it — and we conclude that to be so from the circumstance of this action— then the second issue submitted to the Circuit Court, and not decided, may become highly relevant, to wit: “Has the time limit expired, and. should the defendant be denied the right to enter the land now claimed by the plaintiff?”
For if the timber or some of it has not been cut, and the defendant’s right to' cut has expired under the terms of his deed, then the question arises, Who has the ownership, legal or equitable, of the timber so growing? Certainly not the defendant; his right depends upon the deed he took, and is limited by the deed. If the right of the defendant to cut is gone, then the timber as part of the land belongs to him who owns the land, and that is confessedly the plaintiff. The contention of the respondent that “the reyersion is to Byron B. Moulton” is obviously untenable. Moulton was never anything but á trustee; he never had ány beneficial interest in the land or the timber. The utmost Moulton could now claim would be the right, under the declaration of trust, to sell the timber and pay the proceeds to the beneficiaries; and his right to now do that depends upon whether he has ended and abandoned the trust. But Moulton is not a party, and we decide nothing as to his further rights in the premises.
It is manifest the defendants have no rights, if their time in which to cut has expired. Our judgment is that the decree below is reversed; and the cause is remanded there to carry out the views we have expressed.