4 4? . KENDALL V. J. I. PORTER LUMBER COMPANY. [69 Aistit. KRTDALL V. J. I. PORTER Lu 1 , 1pEu COMPANY. Opinion delivered June 29, 1901. 1. DEED-,GROWING TIMBER — RECORD AS CONSTRUCTIVE NOTICE. — A deed conveying growing trees, and authorizing the grantee to cut and remove them within a specified time, cOnveys an interest in the land, and, upon being recorded, constitutes constructive notice, under §and. & H. Dig., § 727, providing that every deed affecting the title to any property within this state, f`which is or may be required by law to be acknowledged or prayed and recorded, shall be constructive notice to all persons from the time the same is filed for record in the office of the recorder of the proper county." (Page 446.) • , . _ 2. Dp) AS CONSTRUCTIVE NOTICE. — Where land was conveyed by the United States to M., who conveyed the growing timber thereon by that name, both deeds being on recoi . d,' a subsequent grantee of the tiIiber bv deed fiora M., who cOin: , eyed under the name . of G., - will be , h e • ld to have had constructive notice of the prior conveyance by ' his grantor if he had notice that his grantor held the sland under the name of M. (Page 448.) 3. PRIOR CONVEYANCE — ACT UAL NOTICE. — Where a grantor of timber tAild ' his grantee that he had previously sold the same timber to another person, the second grantee will be held to have had actual notice of the prior conveyance, though he searched the record and failed to find the deed on record. (page 448.) 4. RAILROAD RIGHT OF WAT—GROWING TIMBER. — Where the owner of land conveyed the growing timber thereon to one, and subsequently granted a right of way across the land to a railway company, there was no incompatibility in the two grants, and the permission of the railway corn , p • any tn a h ti rd person to cut the timber, on fhe right it f' f )•••5 ' ■• of waY would vest no title therein as against the prior grantee. (Page 448.) j rrf compirm for cutting trees, an instruction was given t om the 4, I . )1, -1 f rlf f that , if plaintiff took t ■ i I m 'f1 b . er fi -lands of defendant under an agreement cif eichange, by which each party was to keep an account of timber taken from the lands of the other and render to the other a statement thereof, and , that Abe
69 ATtic.] 10ENDALL V. J. I. PORTEE LUMESEE CO4pANT. 443 one taking the greater quantity ,should pay the other for the excess, before either part .y. would he entitled to recover from the other for such excess, it =la appear that such statements were rendered ancl a halance struck. field, harmless error, Where appellant's 'admissions shew that he was not prpjudieed. (Page 448.) Appeal from Jefferson Circuit . Court. ANTONIQ B. Qi-EACE, „Top. . White Altheimer, for appellant. To. conStitute a valid 'Sale, 'there must be a delivery. 63 Ark. 10. A contract for sale of standing timber carries no interest in the land.' ' 45" Mass'. 583; 9 Barn: 4 Cress. 561; 3 Day, 484; 7 Greenleaf, 447; 1 Mete: 313; 'Chitty; Contr. (5 Am. Ed.), 39f), 302; 1 Greenleaf, Ev. § 271. Trees; when cut and: carried away, become perSonal prOperty. 79 Mass. 502; 4 Mete. 580; 8 Mete. 34; 81 Mai& 444; 1 Benj. Sales, § 117; Greenleaf, Ev. § 271. The recOrd of an instrument unauthorized is not notice of contents. 11. R. A. 192; 79 Mass. 502. Plaintiff , had no authority to sue. 14 Ark. 431; 1 Corbin, Benj. Sales; 140. Kendall was not a proper party. Sand. & H. Dig., §§- 1577-79. The testimony. of Godfrey was incornpetent. 57 Ark. 297; 119 U. S. 103: Austin, & Taylor, for appellee. • The record of the instrument was noti.9e. Snd. H. , §§ 727, 6370; Tied. Real Prop. sec. 10; 1 Icerr, Real. Prop. sec. pg; 35 Miss 700 • 69 Am Dec 744 • 46 Md 509 • 44 Ark 210- 55 Ark 307; p5 Ark. 448. PATTLE, J. On the 27th day of March, 1899, the 3. Porter Lumber ComPany, a corporation, brought this action against Frank Kendall to recover Of him the value of 175 pine trees, of ihe tOtal value of $175. It r alreged' in its complaint that it was the owner. of 125 pine trees on the noith half of the northeast quarter of the northwest quarter of section 2 in township 7 south and in range 11 yest," and 50'pine trees on the south half of said northeast quarter of said northwest quarter of section 2, and that the defendant wrongfiilly and without right or authority cut and removed from the land the pine trees so owned by it; and asked ii.f l a k nie riieaiainit the defendant for $350, 2 —dOnble the'value of the trees. -" We defendant answered,- and denied that plaintiff WRS the owner of the r trees gro T w 4' ing upOn the north half of . • the nOrtheailt quarter:of 'the northivest -qiiaiteFof Section 2, and alleged thal
444 KENDALL V. J. I. PORTER LUMBER COMPANY. [69 ARK. was. the owner thereof, and, under his claim of ownership, entered ulion the land and cut . and carried away 159 pine trees. He denied that he entered upon and cut and removed timber from the south half of the northeast quarter of the northwest quarter of section 2, He alleged that plaintiff unlawfully cut and carried away 395 pine trees, which were his property, and of the value of $395, and converted them to his own use; and asked for judgment against the plaintiff for double their value. Plaintiff replied, and denied all the allegations in the answer which set up a cross-demand against it. In the trial which followed, it was shown that William God-frey, who was sometimes called William McGehee, was the owner of the . north half of the northeast quarter of the northwest quarter of section 2, and that he acquired title to the same by a patent from the United States, which conveyed the land to him by the name of William McGehee, and that W. A. Godfrey was the owner of the south half of the same tract of forty acres. On the 6th of April, 1896, William Godfrey, by the name of William McGehee, conveyed to the plaintiff all the pine trees on the land owned by him in section 2, with the right and authority to cut and remove the same at any time within 6 years; and on the 8th day of No-vember, 1898, W. A. Godfrey conveyed to plaintiff all the pine trees on the land owned by him as before stated, with the power and authority to cut and remove the same within 2 years. Both . deeds were duly acknowledged, and the former was filed for record. on the 5th of May, 1896. On the 11th day of March, 1899, Wil-liam Godfrey, alias McGehee, conveyed to the defendant "the exclusive privilege for one year to cut, haul away and remove pine trees" from the north half of the northeast quarter of the northwest quarter of section 2. The deed by which it was conveyed was acknowledged, and was filed for record on the 13th of March, 1899. At the time GOdfrey executed this deed he informed the defendant that he had already conveyed the same pine trees to the plaintiff. On the 14th day of March, 1899, W. A. Godfrey conveyed to the Sand Creek & Sulphur Springs Railroad Company "a right of way 100 feet wide, the middle thereof to be the center of the track of said road, through and across" the land owned by him in section 2. • The defendant admitted in his answer that he cut and carried away 159 of the trees conveyed to the plaintiff by William Godfrey, alias McGehee. Evidence was adduced tending to prove e'/
69 ARK.] KENDALL V. J. I. PORTER LUMBER COMPANY. 445 that 125 of this number were worth $125; and that he cut and converted to his own use 50 of the trees conveyed to plaintiff by W. A. Godfrey, and that the same were reasonably worth $50. Evidence was adduced in behalf of the defendant tending to prove that William Godfrey, alias McGehee, at the time he told him that he had already conveyed to the plaintiff certain pine trees, also informed him that the time allowed for the cutting and removing the same had expired ; that he searched the records diligently for a deed from Godfrey to the plaintiff, but found none; that a part, if not all, of the timber cut by him on the south half of the northeast quarter of the northwest quarter of section 2 was on the right of way conveyed to the Sand Creek & Sulphur Springs Railroad Company by W. A. Godfrey, and was cut by permission of the railroad company; and that the plaintiff and defendant entered into a contract by which it was agreed that plaintiff should cut the timber of the defendant on certain lands, and that the defendant should cut the timber of the plaintiff on certain other lands, and that each should keep an account of the timber cut by it or him, and render a statement of the same to the other, and that the one cutting the most timber should pay to the other the difference in the quantity cut by each at the rate of 50 cents per 1,000 feet; and that plaintiff cut of -the defendant's timber, under this contract, 118,000 feet and defendant of plaintiff's 110,000, making a difference in favor of the defendant of 8,000 feet, for which the plaintiff owed him, _ according to their contract, $4. None of . the timber exchanged under this contract was a part of the pine trees sued for by the plaintiff. Upon this evidence the court instructed the jury that tried the issues in the case, in part, over the objections of the defendant, as follows : "No. 1. In the first case the complaint alleges that the plaintiffs were the owners of the pine timber growing on the north half of the northeast quarted of the northwest quarter of section 2, township 7 south, range 11 west, and that the defendants entered upon the said lands and took therefrom 125 trees of the value of $125. The answer admits the taking of these trees by the defendants from this land, but justifies the same under a claim of title. As to the timber on this land, you are instructed as a matter of law that the title of the plaintiff, J. I. Porter Lumber Company, to the said trees was paramount to that of the defendants, and your verdict should be for the plaintiff."
kERDILL V. J. I. PbRTEIi LtTAIBER doMPA7CTY. [69 ARit. And refused td ifistrnct, at the requeSt of the defendints, as folloWs: "The jnry ate inStrueted _that the contract _of sale of the tirn-her then standing Upon the north half of the northeast quarter of northweSt quarter of sectiOn 2, township 7 South, range 11 west, froni -William McGehee to J. 1. Porter Luniber Company with the license in the J. I. Porter Linnber Company to cut and remove the same, is a contract that is not required by law to be recOrded, and the recording of the Same did not create Constructive notice of the exiStenee of such a contract. And if the jury find from the eyidence that the J. I. Porter Lumber Company did not take possession of the said timber or . exercise such oPen, visible, and notorious possession thereof as would put a prudent man upon inquiry as to their rights tO the said _timber, but left the sanie in the hands and possession of William McGehee; their vendor, then any perion Who purchased the said_ timber froth the one in actual possession thereof, Without actiial notice of any outstanding right, is, in law, an innocent purchaser of the same, and his rights thereto are better that the right§ of the J. I. Porter Lumber Company." And the cdurt instructed the jury, in part, over the objections of the defendant; ai follows: "8. And if you Should find that plaintiff took timber from the land§ of defendant in Seetion 14 aforesaid, under an agreement of exchange, by which each party was to keep an account of timber taken from the lands of the other, and render to the other an account or statement thereof, and that the one receiving or taking the greater quantity should pay the other for the excess at the rate of 50 cents pet thOusand, board measUre, then, before either party Would he entitled to recOver from the other for such excess, it must appear from the proof that such statements had been rendered, and a' balance struck, showing the ammint due froth one to the other." The jury returned a verdict in favor of the plaintiff for $175, On account of the conversion of the 175 trees Sued for; And a&o returned 5 Verdict in its favor as tO the cross-demand of the defendant, and he Appealed. The firgt cOntention by appellant ia stated by hiin as follows: "It will be necessary to first determine the character of the eaitrAct between Accaehee and the J. I. Porter LUmber Company under the contract Of sale of the timber in this case. It was nOt1 an absolute sale, beeanie there Was ho dblivery, either actual or
69 ARK.] KENDALL 'U J . I. PORTER 1:6MBER aoliPANY. 447 symbolical; and, to constitnte a Valid sale, a delivery tuna be Trial ' e. - No special property , in the trees growing upon the lands coUld have y eated in the J. I. Porter Luinber Company until theY had been severed from the soil ;nor did the contiabt affect the real eatate upon whiCh the trees weie groving, flirt -her tban tO enter_thereon and CM arid caiiY aWay the ti. ber." Again 'he says : "Thfe being a COntiaCt that doeS net OiteeI the title oi interest in real estate, there iS nothing in Ofir stainte ;that reqiiirè it • fo be _rid-Circled, or inalc'e its record ConStruCtive notice tO" the WOrld; alia, this being true, Mr keodall was not affeeted With notira aVOunt pi the eironeons r'ecodiiii of the a.ine by r the Bfit thiS i:s ., ei4er. 'ectiOii 721 Of 8 .Ouid:e14 Hill'A tit , O-oYip 'g Or provideS: "tve4-fy deed or ifieCting real estate which shall be aeknOWledged Or pi .Ofecl afid certified, 4§ PreSeribed by this chaPter, May, £o'gthei itii the Certificate of acknoWledgment, proof, bi- ielinciniahnient f doWer;._ iecorded by , the recOider of the countY Where suCh land tO 8e CP11- veyed di affeCted thereby shall te iiitutife," etc. And seetion proVideS: "It shall be the duty of each 1'666i-der tO ree'Ord iii the bdoks iirOvided for his office . all deede, Moitgages, COnVeYariCbs, dee& of trust, bonds, covenants, defeaSance4 or Other inatininenti Ot Writing of or concerning any lande and tenant's or gdodi 6'd tele, iihich shall be PidVed Or ackiidi,g edged aCcording id law; alid auththized to be reePided in his dffice." And Seefidn 727 "Every deed, bond, or . instrument oi writing . affeCting ifie fitlb in la* or equity to any . prOPm4Y, ieai Or personal, g iote, Which is or niiy be Oquiied by hav to be aCknoWledged, Or proved and recorded, shall be' ediiitruPtiie nti te all frein the tith the eathe is filed lot rebbid in the offibe Of ihe recOraer of the proper county," eiC. The deeds in this Ca'se cdiveyed groiVing _trees, and authorized the graikee io seVer them froth the sbil ithih de0iite iime. Miring this tiMb the trees. *ere tO_ stand, and derive their iiOur-ishinent fibin the gFoun ioi which ihey Weie 'Standing, and the dee& therefoie conieyed not oniy the tie4S, bit a intefea in the land ; and the teedidef Was teciiiiied to , iFecad, theth, Aiid When filed hit rcord the"± iVerg eoristiiiai46 notide of ill'eii`..cOiitenta tq all Peldlis. 3 WaghbUrii, Rêl Ppeity (5th Ed.); 1 T, . iingree, Real Property, § 268, pa 2 a § j.tiii:e's,,jteil PrOPerty ; 1 Kerr, Re1 Ti Popei* § 56 ;
Tiedethari, Real Picifierty, § 16; iiatedii v. D' i4 '63 Ari.
148 KENDALL V. J. 1. PORTER LUMBER COMPANY. [69 ARK. Appellant also had actual notice of the contents of the deed executed by William Godfrey, alias McGehee, to the appellee, in another way. The land upon which the trees conveyed to appellee stood was conveyed by the United States to William McGehee. The title to the land was in the name of McGehee. When appellant purchased trees upon this land, with the privilege of removing them within a specified time, he purchased with a constructive notice of the fact that the land was conveyed to William McGehee, and that his vendor held the land in that name; and this ought to have led him to search the records for the purpose of ascertaining whether. Godfrey had disposed of an interest in the land in that name, which, if he had made, would have led to the discovery of the deed executed in the name of McGehee to the appellee. This being true, the law charges him Nith actual notice of that fact. Gaines v. Summers, 50 Ark. 322. Appellant was also informed by his vendor that the J. I. Porter Lumber Company had purchased the timber. This did actually put him on inquiry, and he searched the records for a deed from William Godfrey to the Lumber Company. Failing to find such a deed, he purchased the timber. He did not, however, prosecute the inquiry with due diligence. There was one other source of information open to him, and that was an application to the appellee. He failed to make it, and is therefore chargeable with notice of the contents of Godfrey's deed to the Lumber Company. The undisputed facts show that he had actual notice. The court, therefore, committed no reversible error in giving the first instruction copied in this opinion, and in refusing to give the instruction asked for by the appellant. The permission of the Sand Creek & Sulphur Springs Railroad Company to the appellant to cut the pine trees on its right of way vested him with no right or title to the trees. The owner of the land still retained the right to all the timber on the right of way, which was not needed by the railroad company in the construction of its way, for every purpose not incompatible with the right of way. Lyon V. Gormley, 53 Pa. St. 261; Jackson v. Hathaway, 15 Johns. 447; Taylor v. Armstrong, 24 Ark. 102. The trees on the land, moreover, had been conveyed to the appellee • before the light of way was acquired, and there was no incompatibility between the two grants. The last instruction copied above should not have been given. But it was not prejudicial. On the exchange of timber referred
169 ARK.] . 449 to in the instriictioh, the appellant "was entitled:to $4. He admitted that he cut 159 treee, Which"the evidence and verdict of 'the jury show were the property of the appellee, and the verdict' of the jUry shows that the, appellee rcovered the valiie of only 125 of the trees, leaving 34 for which it rec6vered nothing, and the evidence shows that they were worth more than $4. .So.appellant lost.noth, ing by the instruction, and Was not,prejudiced by • The evidence was sufficient to sustain the verdict of the:jury: Judgment affirmed. C., J., ahs-ent.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.