Summary
In Hanby v. Dominick, 206 Ala. 539, 90 So. 287, the original right was an "agreement" to "cut and remove the timber" formerly held by E. L. Hatter, and the extension of time used the terms "grant and sell"; held, the grantee of the timber was the owner and so remains, notwithstanding expiration of the time limit for removal.
Summary of this case from Lowery v. MayOpinion
2 Div. 740.
October 27, 1921.
Appeal from Circuit Court, Bibb County; B. M. Miller, Judge.
J. F. Thompson, of Centerville, and Vassar L. Allen, of Birmingham, for appellant.
Counsel insists that the court erred in directing a verdict for the defendant, but they cite no authority in support of their contention.
R. H. Wright, of Tuscaloosa, for appellee.
The court properly directed a verdict for the defendant. Section 3383, Code 1907; 173 Ala. 368, 56 So. 224; 64 Ala. 187; 140 Ala. 378, 37 So. 275, 1 Ann. Cas. 319; 160 Ala. 276, 49 So. 312; 180 Ala. 416, 61 So. 341; 13 Cyc. 687-689.
This is a suit to recover damages for trespass to lands, the only damages claimed being the cutting of certain timber thereon. The plaintiff purchased the land subject to a prior conveyance of the timber to one Hodges, of which he had notice, and which was of record. The time for the removal of the timber under the Hodges conveyance expired on March 1, 1918, and plaintiff entered into a memorandum agreement with said Hodges for an extension of said time of three years from the date of the agreement. This memorandum will appear in the statement of the case, and discloses that it was given to Hodges individually, and not transferable. It expresses no consideration, and the evidence does not disclose that any was paid. This memorandum was not recorded. Subsequently, and on April 22, 1918, another contract was entered into between plaintiff and Hodges, which likewise appears in the statement of the case, granting a further extension of time for the removal of the timber, this latter agreement expressing a consideration of $400, and is without reference to a former contract. This agreement was on record at the time defendant purchased.
Counsel for the respective parties have laid much stress upon the fact that the contract of 1916 was not recorded and the effect of our recordation statute upon the result of this cause. We are of the opinion, however, that the case may be disposed of without reference to this particular insistence.
Under the decision of this court Hodges was the owner of the timber, and remained the owner notwithstanding the expiration of the time limit for the removal thereof from the land. Long v. Nadawah Lumber Co., 202 Ala. 523, 81 So. 25; Goodson v. Stewart, 154 Ala. 660, 46 So. 239; Ward v. Moore, 180 Ala. 403, 61 So. 303; Zimmerman v. Daffin, 149 Ala. 380, 42 So. 858, 9 L.R.A. (N.S.) 663, 123 Am. St. Rep. 58.
The effect therefore of the expiration of the time limit under the foregoing authorities was to constitute the owner of the timber a trespasser in entering upon the lands for the removal thereof. An agreement to extend this time was not a conveyance or such an instrument as is embraced within the recordation statutes, but merely had the effect to relieve the owner of the timber from being held responsible as a trespasser. The plaintiff in the execution of the latter contract made no reference to any limitation upon the rights of Hodges set forth in the former agreement, and by the execution and delivery to Hodges of this latter contract indicated that there were no limitations except those expressed therein. A man of ordinary business prudence would have been justified in construing the agreement of 1918 as covering the entire contract between the parties. The plaintiff, having armed the owner of the timber with such an agreement, full and complete within itself, without limitations and restrictions so far as the question here involved is concerned, cannot now be heard to say that there was a previous agreement between the parties which restricted the removal to Hodges individually, and denied the right of alienation — this upon the principle of equitable estoppel. Pratt v. Nixon, 91 Ala. 192, 8 So. 751; Jasper Trust Co. v. K. C., M. B. R. R. Co., 99 Ala. 416, 14 So. 546, 42 Am. St. Rep. 75; Hughes v. Rose, 163 Ala. 368, 50 So. 899; 3 Mayf. Dig. 416-9.
The defendant acted in perfect good faith. He had notice of the latter agreement, but not of the former. It is without dispute that he acquired Hodges' rights, and we are of the opinion that the court correctly held that he was entitled to the affirmative charge. Other questions argued or reasons advanced need not be considered.
The judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.