Whittaker v. Thompson

McCOMB, J.

Defendants appeal from a judgment in favor of plaintiffs in an action to recover the value of timber alleged to have been removed from plaintiffs’ property under a timber sales agreement.

The stipulated facts are:

(i) On July 3, 1948, plaintiffs and defendants executed a written agreement which provided for the sale by defendants to plaintiffs of certain real property described therein for a purchase price of $47,500. It provided that the rights of plaintiffs as purchasers of the real property were subject to a previously executed timber contract under which defendants had

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sold 7% million board feet of timber growing on the property to S. C. Giles and Company. The agreement contained, among others, these paragraphs:

“The said vendors also reserve the right to cut any and all timber on said real property not included in the Giles contract, and including timber of any and every nature whatsoever and trees of all sizes and descriptions, this right to continue for a period of six years from the date hereof.

“It is understood and agreed that the vendors shall pay to the vendees the sum of Two Dollars and Fifty Cents ($2.50) per thousand for all merchantable pine and fir timber which they may remove from said real property during said six year period, such merchantable timber to be designated as measuring twenty-two (22) inches under the bark at sixteen (16) inches above the ground, and that will produce 66% of itself in merchantable lumber.

“It is understood between the parties that the timber purchased by the said S. C. Giles and Company has been fully paid for.”

(ii) In October 1948 plaintiffs completed payment of the purchase price of the real property, acknowledging that timber on the property had been sold and that title to the land was being taken subject to the terms of the previous sale of the timber.

(iii) In January 1949 plaintiffs received a policy of title insurance which stated that their title to the land was subject to the sale of timber thereon to S. C. Giles and Company.

(iv) The sale to Giles was an outright sale of 7% million board feet of timber then growing on the real property. The timber was paid for in full by Giles at the time of the execution of its contract with defendants. Giles failed to cut 1% million feet of timber per year as specified in its contract, and at the time defendants began cutting timber, more than five years had elapsed since the execution of their contract with Giles.