Opinion
No. 27106.
May 28, 1928. On Suggestion of Error Overruled, October 1, 1928.
1. LOGS AND LOGGING. Deed to timber with right of removal within twenty years vested title to timber in grantee subject to possibility of reverter.
Deed conveying pine timber on land and giving grantee twenty years within which to remove same vested title to all pine timber on land in grantee, subject to possibility of reverter in grantors in event timber should not be removed from land in time limited therefor.
2. LOGS AND LOGGING. Deed of land excepting and reserving timber theretofore sold, subject to conditions of deed giving grantees twenty years for removal, did not include timber in description.
Where grantors had conveyed timber rights, giving grantees right to remove timber within twenty years, deed to land "excepting and reserving from above-described lands all of pine timber on said lands heretofore sold to N. Co., subject to conditions of said timber deed made by grantors herein to said N. Co.," did not include in description of property conveyed timber previously sold, since words "subject to conditions of, etc.," did not qualify exception, because every word in clause should be given effect if possible.
3. LOGS AND LOGGING. Deed of land excepting and reserving exceptions and reservations mentioned in previous grantor's deed did not include in description timber sold by previous grantor.
Deed of interest in land, excepting and reserving from deed all and singular the exceptions and reservations mentioned in deed from previous grantor, did not include in description of property conveyed timber sold by previous grantor with possibility of reverter.
4. LOGS AND LOGGING. Where time for removing timber expired under deed, timber reverted to grantors selling land, and on death to heirs at law.
When time limited under deed of timber for cutting and removal thereof expired, timber on land reverted to grantors, where grantors had sold land reserving and excepting such timber, and on their death passed from them to their heirs at law.
ON SUGGESTION OF ERROR.5. APPEAL AND ERROR. Decree of dismissal after adjudication on merits will not be affirmed because of complainant's failure to make necessary parties defendant.
Where bill of complaint for partition was dismissed by lower court after adjudication on the merits to effect that complainants had no right, title, or interest in property, such decree will not be affirmed on appeal because of complainant's failure to make certain necessary parties defendant.
APPEAL from chancery court of Pearl River county; HON. T.P. DALE, Chancellor.
Rawls Hathorn, for appellants.
It is our contention that there are but two questions to be determined and upon the determination of these two questions the decree appealed from must either stand or fall.
First, is the clause in the deed from James A. Wheat and wife to their five sons, an exception or reservation? and second, if an exception, what pine timber is excepted from the terms of the deed? The clause which the chancellor, by his finding held to be only a reservation, and which we respectfully contend is an exception, and the clause to which we refer in our two propositions or questions above, reads as follows:
"Excepting and reserving from the above-described land all of the pine timber on said land heretofore sold to the New Orleans NavaI Stores Company, subject to the conditions of a certain timber deed made by the grantors herein to the said New Orleans Naval Stores Company on the 28th day of November, 1905."
We respectfully submit that the above-quoted clause in the deed from James A. Wheat and wife to his five sons, J.H. Wheat, E.M. Wheat, B.F. Wheat, M.W. Wheat, and J.S. Wheat, is clearly an exception and not a reservation, and if it is an exception, and if its legal effect in the deed is to except the pine timber on the land from the operation of the deed, then the five sons never had any claim or right to the pine timber, and at the expiration of the twenty-year limitation in the timber deed from James A. Wheat and wife, to New Orleans Naval Stores Company, the pine timber would revert to James A. Wheat, if living and if dead to his heirs at law. While the terms "excepting" and "reserving" are frequently used indifferently, and synonymously, and the one is often used for the other, yet they have an entirely different meaning. One of the clearest distinctions we have found in the meaning of "excepting" and "reserving" when so used is in Rick v. Zeilsdorf, 99 Am. Dec. 83.
In the above-cited case the court held that the term in a deed "reserving the right to cut and remove all the pine timber or trees upon said premises, and one-half of all cedar trees upon said premises," was an exception and not a reservation, and that title to the reserved timber remained absolutely in the grantor. See Wait v. Baldwin (Mich.), 1 Am. St. Rep. 551; Bordon v. O'Brien (Wis.), 133 Am. St. Rep. 1066; Hicks v. Phillips, 47 L.R.A. (N.S.), 878; Levis Co. v. Parrott Lbr. Co., 46 S.E. 647; Hickman et al. v. Enterprise Lumber Co. et al., 105 So. 340; Woods v. Union Sawmill Co., 142 La. 554, 77 So. 280. The supreme court of Mississippi, in the recent case of Stewart v. Herring, 138 Miss. 728, 103 So. 375, held that the provision in a deed "the timber on the above-described land is hereby reserved during Mrs. Harriett Stewart's lifetime," was an exception and not a reservation, and that title to the timber was absolute in Mrs. Stewart during her lifetime.
There are two major constructions given to timber deeds with a time limitation within which to cut and remove the timber. The rule in a great number of states, including Alabama, Maine, New Hampshire and Indiana, is that an indefeasible title passes to the timber, and that this title is absolute and is not lost or destroyed by a clause in the deed limiting the time within which the timber can be cut and removed. See Zimmerman Mfg. Co. v. Doffin (Ala.), 42 So. 858, for a full discussion of the above construction.
The second major construction given timber deeds with the limitation clause in them, and the construction given by Mississippi, as we will show and a great number of other states in the Union, is that a defeasible title only passes, subject to be defeated by failure to cut and remove within the time limitation. See note U.S. Coal Co. v. Harrison, 47 L.R.A. 875. While a great number of states holding to this second construction, and the final result of this holding in all these states is that title to the timber is forfeited and vests in the grantor at the expiration of the time limit. We find here two constructions which are major, so far as this class of cases is concerned, given, or two different reasons assigned by the court, by which constructions or reasons they arrive at the final conclusion, that title is not absolute but is defeated by failure to cut and remove in the time limit. One view or construction is that the limitation clause is a condition precedent and that therefore, title passes only to those trees not cut and removed, title never passes, but remains in the grantor, and of course would pass by later conveyance of the fee in the land unless duly excepted. To this construction belongs quite a number of states, including Louisiana and Georgia. The second construction, and the one to which Mississippi has tied herself, is that the clause is a condition subsequent, and that absolute title passes, subject to defeasance as to any and all timber not cut and removed within the time limit.
Our court has clearly and definitely aligned itself with those states which hold that "a contract for standing timber, which provides that it shall be removed within a specified time, passes an absolute title to the timber, which is subject to defeasance as to the timber not removed within the time limit." To this effect is the holding of this court, speaking through Chief Justice SMITH in Ladner v. Ingram-Day Lbr. Co., 135 Miss. 641. The position of our court is further clarified by the recent holding, again speaking through Chief Justice SMITH, in the case of Crorow Hardwood Co. v. Mrs. E.J. Burks, No. 26,917, and which was decided just a few weeks ago and is not yet reported.
Having demonstrated as we think we have, that under the rule of construction in Mississippi, absolute title to the timber in question passed to the New Orleans Naval Stores Company, subject only to be defeated by failure to cut and remove, we assert that the thing sold to the Naval Stores Company was "all the pine timber" on the land. If "all the pine timber on the land" was sold to the New Orleans Naval Stores Company, then when James A. Wheat conveyed to his five sons, "all the pine timber" was excepted and not conveyed for he excepted, and did not convey "the pine timber that had been theretofore sold to New Orleans Naval Stores Company." Under the holding of our court in the Crorow Lumber Company case, supra, at the time James A. Wheat made his deed to his five sons, he did not own the pine timber, and the New Orleans Naval Stores Company did own it.
This is not a case involving the intention of the parties. When the court can determine the legal meaning of the exception in the deed from Wheat to his five sons, it will apply this meaning, and in doing so it will of course, give effect to all the words used if it can be done. The exception in full reads: "Excepting and reserving from the above-described land all of the pine timber on said land heretofore sold to the New Orleans Naval Stores Company, subject to the condition of a certain timber deed made by the grantors herein to said New Orleans Naval Stores Company on the 28th day of November, 1905." If the exception had read "excepting and reserving all pine timber on the land," and stopped there, we take it that no one could or would contend that the reversion would go with the land, but all would admit that the timber so excepted would revert to James A. Wheat or his heirs.
The exception actually reads, "excepting and reserving from the above-described land all the pine timber on said land heretofore sold to the New Orleans Naval Stores Company." If Mississippi had aligned herself with those states which hold that removal in a deed to timber with a time limit constituted a condition precedent, and that little only passed to the timber as and when it was cut and removed, then appellees would have to prevail here, for clearly no timber would be sold, except such as title should pass to, and title would pass to none except such timber as was actually cut and removed. See St. Louis Cypress Co. v. Thibodeaux (La.), 45 So. 745.
It was not the timber that was "subject to the conditions of a certain timber deed made by the grantors herein to the said New Orleans Naval Stores Company," but it was the land itself which was subject to these terms and conditions. See Rodgers v. Lumber Mineral Co., 115 Miss. 339.
We are not arguing the proposition that the pine timber would revert to the heirs at law of James A. Wheat, if it was excepted from his deed to his five sons, as the courts are fully agreed on this, and we take it appellees will not take issue on that proposition. We want to call the court's attention to the fact that when appellant J.S. Wheat conveyed his one-fifth interest in the lands in controversy he specifically reserved and excepted from this deed the same exceptions and reservations as were in the deed from his father to the five sons, including himself. Conveying no more and no less than was conveyed to him by his father, and therefore, if the pine timber reverted to the estate of James A. Wheat, appellant, J.S. Wheat owns his one-eleventh interest in the timber just as his sisters, the other appellants do.
R.D. Ford and J.C. Shivers, for appellee.
The appellants rely for a reversal of this case upon the contention that the reservation contained in the deed from Jas. A. Wheat and wife, Mary M. Wheat, to their five sons, was a technical exception, and secondly, that the question involved being a new question for the Mississippi courts that our court should adopt the rule which the appellants claim exists in other states who adhere to the doctrine that a sale of growing timber with a time limit for removal, passes an absolute title upon a condition subsequent. The contention of the appellees is that the only question involved is a question of the construction of the terms of the deed from Jas. A. Wheat and wife to their five sons, and the deed from J.S. Wheat to B.F. Wheat when considered in connection with the original deed executed by Jas. A. Wheat and wife to the New Orleans Naval Stores Company whereby the pine timber on the land was conveyed with a time limit of twenty years for removal given. The appellees further contend that the courts called upon to decide questions involving reservations containing similar language to the language contained in the reservation found in the deed from Jas. A. Wheat and wife to their five sons, with no countervailing facts existing, have uniformly held that such reservations were for the benefit of the owner of the soil at the time of the reversion or the expiration of the time limit for the removal of the timber. None of the courts have found it necessary in construing such reservations, to decide whether or not a technical exception or a technical reservation were created, and none of them have made the decision to depend on whether or not the particular court making the decision was committed to the doctrine of a conveyance of timber with a time limit of removal, is a conveyance of the absolute title upon a condition subsequent.
As stated above, the courts have uniformly decided similar reservations with no countervailing facts existing, adversely to the appellees' contention, upon the theory that the intention of the parties as expressed in the deed, was the controlling idea with the courts. In getting at the intention of the parties the courts have observed certain well-recognized legal principles, such as that the words of a deed are to be deemed the words of the grantor, and if ambiguity exists in the deed, the benefit of the doubt is to be given to the grantee; that a reservation in favor of the grantor is to be construed more strictly than a grant and if doubt exists that that doubt is to be resolved against the grantor. It may further be conceded that a reservation couched in such terms as "the timber on this land is excepted or reserved" has been held to provide for a reversion to the grantor at the expiration of the time limit for the removal of the timber, but that if additional ideas are introduced in the reservation suggesting that the reservation is possibly not intended to be an absolute reservation or exception, but a qualified one for the benefit of some prior grantee of timber, the courts have been quick to recognize such qualified reservation and to extend its terms in favor of those intended to be benefited or protected thereby.
The truth is, that the grantor, Jas. A. Wheat, by the words used by him in his conveyance went much further than to show that this reservation was not an absolute reservation having some relation to the previous sale of the pine timber to the New Orleans Naval Stores Company, but by the very language used the grantor limited the reservation to the actual rights which should be exercised by the New Orleans Naval Stores Company or its assigns. It might be considered that this was clear from the reservation clause in the words, "excepting and reserving from the above-described land all of the pine timber on said land heretofore sold to the New Orleans Naval Stores Company," but the grantor evidently with the idea in his mind of leaving no doubt as to what his intention was, after using the above reservation clause follows with this clause, "subject to the conditions of a certain timber deed made by the grantors herein to the said New Orleans Naval Stores Company on the 28th day of November, 1905." The word "subject" as defined by the lexicographer Webster, means, "being under the contingency of; dependent upon; exposed to." Substituting for the words "subject to" this definition, there does not seem to be any doubt about what the intention of the grantor could have been. If he had been intending to make an absolute reservation of the pine timber on this land, he might have done so by simply saying the pine timber on this land is excepted. Surely, apt words would have been used to express such an intention.
We desire to take notice of two cases cited by appellants' counsel namely, the case of Hickman v. Enterprise Lumber Co. (La.), 105 So. 340, and the case of Levis v. Parrott Lumber Co. (Ga.), 46 S.E. 647. It is worth while to note that Louisiana courts adhere to the doctrine that a sale of standing timber with the time limited for removal, passes to purchaser title to only so much as he removes within the time limited. See St. Louis Cypress Co. v. Thibodeaux, 120 La. 835, 45 So. 742; and the courts of Georgia are committed to the doctrine held by the Mississippi courts that title to timber conveyed with a limited time for removal passes title absolute, subject to be divested by failure to remove. See Morgan v. Perkins, 94 Ga. 353, 21 S.E. 574; Perkins v. Peterson, 110 Ga. 24, 35 S.E. 319; Jones v. Graham, 141 Ga. 60, 80 S.E. 7. The Hickman-Enterprise Lbr. Co. case, is distinguished from the instant case in two particulars, namely, first, in the timber deed made by the Enterprise Lumber Company, there is a reversionary clause in the following words: "And any timber remaining on said lands after said date, shall revert back to the Enterprise Lumber Company, Limited." Second, the reservation clause in the deed to the land contains an absolute reservation regardless of everything, in the following terms: "From the above-described tract of land there is excepted, all the timber, being, lying and situated on that certain tract of land as described in the contract between the Enterprise Lumber Company and J.B. Gillis." The reference to the sale of timber by the Enterprise Lumber Company to Gillis, was not for the purpose of describing the timber, but for the purpose of describing the land on which the timber was situated. The timber itself was absolutely reserved without any sort of condition. We do not think that the case of Levis v. Parrott Lumber Company, decided in the year 1904, is any authority on which the appellants may rely. That case construed a deed to land on which the timber had been previously conveyed. The deed to the land contained the following reservation:
"All timber on the above lots sold prior to this day, reserved." The original timber deed contained a reversionary clause in the following words: "All timber remaining on above lots to revert back to this company at eight years."
The case of Sutton v. Gray Lumber Co. (Ga.), 60 S.E. 2, was decided in 1908, and is directly in point. The case referred to construes a deed to the land containing the following reservation: "The saw mill timber heretofore sold to Henry Banks is excepted."
The case of Deer Creek Lumber Company v. Sheets (W. Va.), 83 S.E. 81, is a case directly in point from a state which also holds to the same doctrine that the Mississippi courts do, on the subject that title passes to timber conveyed with a time limit for removal, subject to be diverted by failure to remove. See Brown v. Gray, 68 W. Va. 555, 70 S.E. 276; Hornthal v. Howcott (N.C.), 70 S.E. 173; French v. Sparrow Kroll Lumber Co., 135 Mich. 424, 97 N.W. 961; Strasson v. Montgomery, 32 Wis. 52; Shannonhouse v. Shannonhouse (N.C.) 84 S.E. 259; International Lumber Company v. Staude (Minn.), 175 N.W. 909; Granville Lbr. Co. v. Atkinson, 234 Fed. 424; Wilson v. Buffalo Collieries Co., 79 W. Va. 279, 91 S.E. 449.
The case of Rich v. Zeilsdorl, 99 Am. Dec. 83; Wait v. Baldwin, 1 Am. St. Rep. 551; Borden v. O'Brien, 133 Am. St. Rep. 1066; Hicks v. Phillips, 47 L.R.A. (N.S.) 878, cited by appellants' counsel, are not in point. Those cases are construing deeds made by grantors who had never previously conveyed away timber on the land, but who were making a conveyance of the land and reserving the timber. We take it that there could be no sort of question but that a deed of the nature passed upon by the courts in these cases, would be held to provide for a reservation in behalf of the grantor. Certainly, the intention of the parties to those deeds was that the timber should remain the property of the grantors. The decision of the supreme court of Mississippi in Stewart v. Herring, 138 Miss. 719, 103 So. 375, that a reservation in a deed made by Mrs. Stewart in the words, "the timber on the above-described land is hereby reserved during Mrs. Stewart's lifetime," had the effect of reserving that timber for that period of time. There had never been any previous conveyance of the timber.
The counsel for appellants have cited the case of Crorow Hardwood Company v. Burks, recently decided by the supreme court of Mississippi, and have quoted from that case at great length, but appellees' counsel fail to understand for what purpose. The court in that case reaffirmed what it had already decided clearly and unequivocally in the case of Ladner v. Ingram-Day Lumber Co., 135 Miss. 632, 100 So. 369, that a timber deed with a time limit for removal had the effect of conveying the timber absolutely, subject, only to a defeasance in case of nonremoval within the time limited. One principle of law which the court referred to but did not decide in the Crorow Hardwood Company-Burks case, was whether or not a possibility of reverter was alienable. Since the decision in that case, the supreme court of Mississippi in Wheat v. J.J. White Lumber Co., No. 26998, did decide this very identical question in a case between some of the same parties to this suit and involving the hardwood timber on the same identical land that the pine timber involved in this suit, is situated.
The only thing that the court decided in the Crorow Hardwood Company-Burks case which had not been previously decided, was that a conveyance of timber under the description of "all the timber which I own" on certain land, did not cover timber which the grantor had previously conveyed away in a deed granting a limited time for removal. If that holding of the court has any application to the facts of this case, it certainly does not help the appellants in any degree.
Rawls Hathorn, in reply brief for appellants.
Appellees make the broad statement that the intention of the parties shall control and then they state principle of law governing construction based upon such intentions, but we respectfully submit that the intention of the parties must be determined by the instrument itself, unless there is some part of it that is uncertain or ambiguous, and even then, if the uncertain or ambiguous part can be treated as surplusage and a reasonable meaning and interpretation of the deed can be determined by so treating such ambiguous or uncertain terms, it will be done. The courts never resort to parol evidence, custom, intention, presumption against grantor, or any extraneous matter at all to determine the meaning of a written instrument unless there is something about it which is ambiguous or uncertain, and we respectfully submit that there is nothing in the exception or the entire deed of conveyance that is at all ambiguous or uncertain, and we further insist that the intention of the parties must, if possible, be determined from the contract as written, and the only way that this can be done is to give the words used in the contract their ordinary every-day meaning.
We desire to call the court's attention to the distinguishing features of the cases cited by appellees from the case at bar. In Hickman v. Enterprise Lumber Co., 105 So. 340 and in Levis v. Parrott Lumber Co., 46 S.E. 647, there were reservations in the deeds somewhat similar to the reservation in the case at bar, but in the original timber deeds, there were reversionary clauses in the deeds; in the Louisiana case the clause reading: "And any timber remaining on said lands after said date shall revert to the Enterprise Lumber Company Limited," and in the Georgia case the clause read: "All timber remaining on above lots to revert back to this company at eight years," and the courts in those cases seemed to have made the distinction that if the original timber deed contained a clause providing that it should revert to the grantor at the expiration of the time limit, and then in a later deed to the land, the timber previously sold was excepted or reserved, the reversion would go to the original grantor and would not follow the land. There is no such distinction made by the courts of Mississippi; our courts holding that the timber at the expiration of the time limit will revert to the grantor or those to whom he has conveyed his right of reversion, whether there is a reverter clause in the timber deed or not. In fact our courts hold that such a clause in a timber deed is not only unnecessary but is surplusage. See the case of Stewart v. Herring, 138 Miss. 728, 103 So. 375: "Without any provision in the deed to that effect, the title to the timber on her death would revert to the owner of the land. That provision in the deed was mere surplusage. It was only a recital of what would take place under the law." And to the same effect are the cases recently decided by this court. Crorow Lumber Co. v. Burks, No. 26917, on this court's docket and Wheat v. J.J. White Lumber Co., No. 26998.
By reading the opinions in the two Georgia cases cited, Levis v. Parrott Lbr. Co., supra, and Sutton v. Gray Lbr. Co., 60 S.E. 2, it seems to us that the distinction between the two cases is a very labored one unless we place it on the theory of the reverting clause in the original timber deed in the Levis case, there being no such reverting clause in the Sutton case.
The exception in the Levis case, as already stated, was: "All timber on above lots sold prior to this day reserved," and the exception in the Sutton case being: "The sawmill timber heretofore sold to Henry Banks excepted." In one of these cases the court held the timber reverted to the original grantor and in the other to the owner of the land.
In Deer Creek Lumber Company v. Sheets et al., 83 S.E. 81, the reserving clause was: "The timber upon this tract of land was sold to E.M. Arbogast by E.N. Ervin, and is therefore reserved by the party of the first part in this deed." From the reasoning of the court in that case, it will be seen that it reached its conclusion from the very words of the reservation as showing that the grantor only meant to reserve for the benefit of Arbogast, and that court makes much of the use of the word "therefore" used in the reserving clause, and the court reads into the contract and says that what the grantor meant to say was "the timber has been sold to Arbogast, and what has been sold to him we reserve for him." No such construction can or will be placed upon the exception made by Wheat.
The next case cited is Hornthall v. Howcott, 70 S.E. 173. The exception in that deed is: "The pine and poplar timber having been previously sold to the John L. Roper Lumber Company and is excepted from this deed." The court here reached its conclusion by the same line of reasoning that was used in the Louisiana case cited by appellees, and in the Sutton case, supra (Ga.). The case of French v. Sparrow Lbr. Co., 97 N.W. 961, is not in point.
The next case cited is Strasson v. Montgomery, 32 Wis. 52. The exception in that case is "excepting and reserving a certain amount of timber heretofore sold Elias N. White, and the said Elias N. White or his assigns is to have until December, 1871, to take off said timber." The court used the same line of reasoning in this case that was used in the other cases cited. Shannonhouse v. Shannonhouse (N.C.), 84 S.E. 259, cited by appellees throws no light of any kind on the case.
The case of International Lbr. Co. v. Staude (Minn.), 175 N.W. 910, when read and studied is authority for appellants. The cases of Granville Lumber Company v. Atkinson, 234 Fed. 424, and Wilson v. Buffalo Collieries Company, 91 S.E. 449, are not in point. Appellees say in their brief and cite authorities to support the proposition that deeds are to be construed more strongly against the grantor, and argues that a reservation is to be more strictly construed than a grant. Appellees overlook evidently, a very significant qualification to the rule. See 8 R.C.L., p. 1051, section 104: "But it has been said that the rule of favor is the last one which the courts apply, and ought never to be resorted to so long as a satisfactory result can be reached by other rules of analysis and construction." See 18 C.J. p. 263, par. 219, for the complete Rule of Construction.
7 Words and Phrases page 6712, defines "subject to" when used in an assignment subject to a deed of trust as meaning "charged with." The clause quoted, then evidently means that the land being conveyed is "subject to" "exposed to," and "charged with" the right of the New Orleans Naval Stores Company, its successors or assigns "to enter upon said lands at any and all times during said term of twenty years from date hereof (November 28, 1905) with tools, wagons, carts, tramways, laborers, and all other conveyances and appliances that may be necessary or convenient for the removal and for working said timber for turpentine. And also to erect a turpentine still and houses to be used in connection with same on a part of said land to be selected by said grantee."
We direct the court's attention to the following authorities which we overlooked in our brief in chief: Zirkle v. Allison, 15 A.L.R. 39 to 117, and particularly notes on this case; Ford Lumber Co. v. Cornett (Ky.), 142 S.W. 718, and 145 S.W. 1105; Creshorn v. Atlantic Coast Lbr. Co., 79 S.E. 799; Lewis v. Bennett, 103 S.W. 233; Adams v. Fidelity Lbr. Co., 201 S.W. 1034.
Argued orally by C.V. Hathorn, for appellant, and R.D. Ford and J.C. Shivers, for appellee.
The appellants, who were the complainants in the court below, brought this suit against the appellees for the partition of the pine timber growing on a tract of land. The case was heard on bill, answer, and proof, and a decree was rendered dismissing the bill of complaint, from which the complainants have brought the case to this court.
On November 28, 1905, James A. Wheat, who then owned the land, and his wife, conveyed to the New Orleans Naval Stores Company the pine timber thereon, the deed reciting that — "The term of twenty years from date hereof is hereby granted the said New Orleans Naval Stores Company, its successors and assigns, in which to work said timber for turpentine and to remove same, and the right is hereby granted unto said grantee herein, its successors and assigns, to enter upon said lands at any and all times during said term of twenty years from date hereof with tools, wagons, carts, tramways, laborers and all other conveyances that may be necessary or convenient for the removal and for working said timber for turpentine and also to erect a turpentine still and houses to be used in connection with same on a part of said lands to be selected by said grantee."
The rights of the New Orleans Naval Stores Company under this deed passed to the appellees the Salmen Brick Lumber Company and J.J. White Lumber Company by mesne conveyances. On the 15th day of December, 1905, James A. Wheat and his wife conveyed the land to their five sons, J.H., E.M., B.F., M.W., and J.S. Wheat; the deed "excepting and reserving from the above-described lands all of the pine timber on said lands heretofore sold to the New Orleans Naval Stores Company, subject to the conditions of a certain timber deed made by grantors herein to the said New Orleans Naval Stores Company on the 28th day of November, 1905.
In December, 1907, J.S. Wheat conveyed his interest in the land to B.F. Wheat by a deed reciting:
"Excepting and reserving from this deed all and singular the exceptions and reservations mentioned in a deed from James A. Wheat and Mary M. Wheat to J.H. Wheat, E.M. Wheat, B.F. Wheat, Jr., M.W. Wheat and J.S. Wheat, which deed is now of record in Book 14, at page 188 of the record of deeds of Pearl River county, Mississippi, in the chancery clerk's office at Poplarville in said county and state, in which deed for particulars of said exceptions and reservations reference is hereby made same to be found on page 188 of Book 14 of the record of deeds of Pearl River county, Mississippi, in the chancery clerk's office at Poplarville, said county and state."
In January, 1914, J.H. Wheat conveyed his interest in the land, without excepting the timber from the operation of the deed, to E.M., B.F., and M.W. Wheat, who afterwards conveyed the timber thereon to the appellees, and extended the time for the cutting and removal thereof to the 9th day of April, 1931.
James A. Wheat and his wife both died intestate, the former in 1910 and the latter in 1918, and the complainants in the court below, appellants here, are all of their heirs at law, except their four sons, J.H., E.M., B.F., and M.W. Wheat, whose interest in the timber is now claimed by the appellees, and whose right thereto is admitted by the appellants.
The deed from James A. Wheat and his wife to the New Orleans Naval Stores Company vested in the grantee the title to all the pine timber on the land therein described, subject to a possibility of reverter in the grantors in event the timber should not be removed from the land within the time limited therefor. Ladner v. Ingram-Day Lumber Co., 135 Miss. 632, 100 So. 369; Crorow Hardwood Lumber Co. v. Burks (Miss.), 115 So. 585; Finkbine Lumber Co. v. Saucier (No. 27105, Miss.), 116 So. 736, not yet [officially] reported.
The appellee's contention is that this possibility of reverter passed to the grantees in the deed from James A. Wheat and wife to his five sons, conveying to them the land on which the timber was, and from the grantees therein to the appellees by the deeds from them hereinafter set forth.
We will assume, in aid of this contention, but without deciding, that this possibility of reverter, though inalienable at common law, passed to the five sons of James A. Wheat under his deed to them by estoppel under the provisions of section 2767 of the Code of 1906, section 2426, Hemingway's 1927 Code, provided the timber on the land was included in the description of the property conveyed by that deed. Compare Wheat v. J.J. White Lumber Co. (No. 26998, Miss.), 116 So. 103, not yet [officially] reported.
One question for decision then is: Is the timber sold by James A. Wheat and wife to the New Orleans Naval Stores Company included in the description of the property conveyed by them to their five sons?
The appellees contend that the clause in the deed excepting and reserving the timber on the land therein conveyed was not intended to withdraw the timber from the operation of the deed, but merely to cause the land to pass to the grantees therein subject to the right of the New Orleans Naval Stores Company to remove the timber therefrom, and to do the other things thereon which it was authorized to do by the deed which the grantors had previously executed to it.
We do not so understand the deed. It excepts and reserves in plain and unambiguous language the timber from the property conveyed by it, and clearly manifests an intention on the part of the grantors not to include it therein, thereby preventing any rights, present or prospective, which the grantors may have had therein from passing to the grantees. Finkbine Lumber Company v. Saucier, supra. The words, "subject to the condition of a certain timber deed made by the grantors herein to said New Orleans Naval Stores Company of the 28th day of November, 1905," which follow the words excepting the timber from the operation of the deed, cannot be held to qualify the exception, and may have been inserted for the purpose of making it clear that the grantees received the land burdened with the right of the New Orleans Naval Stores Company to use it in the manner and for the purposes provided in its prior deed from the grantors to the timber thereon. Had the reservation contained these words only, it would then mean what the appellees claim that it does, and if the grantors so intended, the prior words eliminating the timber from the property conveyed should have, and we must presume would have, been omitted. Every word in the clause should be given effect, if possible, and this would not be done were we to hold that the true intent of the grantors was set forth by the words beginning "subject to the conditions of a certain timber deed," for, in that event, we would necessarily hold that the words "excepting and reserving from the above-described land," etc., add nothing to the meaning of the reservation.
Among the cases cited by the appellees, and on which they principally rely, are Sutton v. Gray Lumber Co., 3 Ga. App. 377, 60 S.E. 2; and Deer Creek Lumber Co. v. Sheets, 75 W. Va. 21, 83 S.E. 81.
In the Georgia case, Slade executed to Banks a deed to the sawmill timber on a tract of land, "provided the same be cut within five years from date." Afterwards Slade conveyed the land to Patten by a deed reciting, after the description of the land, that "the sawmill timber heretofore sold to Henry Banks excepted." Banks did not cut and remove the timber from the land, and after the expiration of the time allowed him therefor, the Gray Lumber Company cut and removed the timber under a deed thereto from Patten. Slade died, and his heirs at law sued the Gray Lumber Company in trespass from cutting and removing the timber. The court held that the deed from Slade to Banks, under the proviso therein, conveyed to Banks only such timber as he might cut and remove from the land within the time limited therefor. Under this construction of the deed to Banks, it necessarily followed that the exception in the deed from Slade to Patten of "the sawmill timber heretofore sold to Henry Banks" withdrew from the operation of that deed such sawmill timber only as Banks should cut and remove from the land within the time limited therefor.
In the Virginia case the language of the reservation in a deed from Ervin to Sheets was as follows:
"The timber upon this tract of land was sold to E.M. Arbogast by E.N. Ervin and is therefore reserved by the party of the first part in this deed."
The court held that the use of the word "therefore" in the deed to Sheets indicated that the reservation was for the benefit of Arbogast only, and evidenced an intention on the part of the grantor that the title should pass under the deed to all timber on the land other than that which Arbogast should cut and remove therefrom.
Neither of these cases are in point here.
Another question for decision is: Is the timber sold by James A. Wheat and wife to the New Orleans Naval Stores Company included in the description of the property conveyed by J.S. Wheat to B.F. Wheat? That the timber was not included therein will appear from a comparison of this reservation with the reservation in the deed from James A. Wheat and wife to their five sons, and applying what we have heretofore said relative thereto.
It follows from the foregoing views that the timber on the land reverted to James A. Wheat and his wife when the time limited for the cutting and removal thereof in their deed to the New Orleans Naval Stores Company expired, and on their death passed from them to their heirs at law.
Reversed and remanded.
ON SUGGESTION OF ERROR.
In the suggestion of error filed herein by the appellees, it is said that the sons of James A. Wheat, brothers of the appellants herein, are necessary parties defendant to the bill of complaint filed by the appellants in the court below; that, although no objection to their nonjoinder was raised by the appellees in the court below, nevertheless the court of its own motion should either have required them to be joined as parties defendant, or dismissed the bill, and that consequently the decree of the court below, which dismissed the bill for another reason, should be affirmed here.
Leaving out of view the fact that this question is raised for the first time on a suggestion of error, nevertheless, it should not be here considered, for the reason that, as it was not called to the attention of the court below, the case was decided by it on the merits; its decree expressly adjudicating that the appellants have no right, title, or interest in the property sought to be partitioned. This adjudication, if allowed to stand, will, to say the least, constitute a cloud on the appellants' right to the property, and confront them as such, should we affirm the dismissal of their bill, if they should thereafter file another.
We adhere to our former opinion, and decline now to say whether or not the sons of James A. Wheat are necessary parties defendant to the bill of complaint.
Overruled.