Hunter v. Hughes

Mississippi Supreme Court
Hunter v. Hughes, 135 Miss. 644 (Miss. 1924)
100 So. 371; 1924 Miss. LEXIS 68
Anderson

Hunter v. Hughes

Opinion of the Court

Anderson, J.,

delivered the opinion of the court.

(After stating the facts as above). It is necessary to ascertain first the character of the contract of settlement and conveyance of April 13, 1914, between appellant and appellee Mrs. Hughes. It is contended on behalf of appellant that in its controlling features it is a contract of indemnity entered into for the purpose of saving appellee Mrs. Hughes from loss at the hands of appellee Leavenworth on account of any deficiency in cottonwood timber on the Timberlake plantation caused by appellant’s trespass thereon to which appellee Leavenworth was entitled under his said conveyance from appellee Mrs. Hughes. : Í *!#!IW]

We do not think we could do better than to quote what is said in 31 C. J., section 1, p. 419, in defining contracts of indemnity:

“The word ‘indemnity’ means protection or exemption from loss or damage past or to come; it signifies to reimburse to make good and compensate for loss or injury, to make sure, to protect from injury, etc. Gener*662ally speaking, the word carries with it two meanings: (1) In the sense of giving security; and (2) in the sense of relieving a party from liability for damage already accrued; and in a broad and general sense indemnity is that which is given to a person to prevent his suffering-damage. But as relating to the contract of indemnity it may be more specifically defined as the obligation or duty resting on one person to make good any loss or damage another has incurred or may incur by acting at his request or for his benefit.”

For the purpose of determining this question it is necessary to consider in connection with said contract of settlement and conveyance of April 13, 1914, between appellant and appellee Mrs. Hughes, the said conveyance of April 28, 1909, between the latter and appellee Leavenworth. It will be observed that by the latter conveyance appellee Mrs. Hughes granted to appellee Leavenworth “the exclusive right to cut and remove all trees fifteen inches and over in diameter two feet from the ground . . . standing on said plantation at any time within the term of thirteen years commencing from June 1, 1909.” (Italics ours.) And in its fourth paragraph said conveyance provides “that all trees and timber standing, lying- or being on the within mentioned property at the expiration of said period of thirteen years shall be the property of” appellee Mrs. Hughes. (Italics ours.) Said contract of settlement and conveyance between appellant and appellee Mrs. Hughes of April 13,1914, provides in substance simply that on account of appellant having wrongfully cut and removed a lot of cottonwood trees from Timberlake plantation belonging to appellee Mrs. Hughes, which wrongful cutting and removing might result in an insufficiency of timber on said plantation to supply appellee Leavenworth with the timber to which he was entitled under his said conveyance from appellee Mrs. Hughes, for the purpose of enabling appellee Mrs. Hughes to make good any such deficiency, appellant conveys to her enough cottonwood *663timber standing on appellant’s Woodstock plantation to meet that requirement, with the power in appellee Mrs. Hughes to'convey the same to appellee Leavenworth. In said contract of settlement and conveyance in varying language it is made plain that said conveyance from appellant to appellee Mrs. Hughes was for the sole purpose of making the latter whole as against any reclamation claim on the part of the appellee Leavenworth under his said conveyance from appellee Mrs. Hughes. It is apparent from its language that the right of appellee Mrs. Hughes to convey said cottonwood timber on the Woodstock plantation to appellee Leavenworth was conditioned upon such deficiency. Especially is this true of the following language with which the second paragraph concludes:

“And the said George Leavenworth, his assigns and representatives, shall thereupon have the same rights, remedies and privileges with reference to said cottonwood trees growing and standing on said Woodstock plantation in all respects as if they were growing on said Timberlake plantation.”

It seems clear that, taking these two instruments together, only one reasonable conclusion can be reached and that is that under the contract of settlement and conveyance of April 13, 1914, appellant only undertook to indemnify appellee Mrs. Hughes against any loss she might suffer as a result of a reclamation claim by appellee Leavenworth under the terms of his deed from appellee Mrs. Hughes of April 28,1909. The latter deed, although not expressly made a part of the former, nevertheless was founded upon it. In fact it was the basis and consideration of said contract of settlement and conveyance.

The next question is: What were the rights of appellee Leavenworth under said conveyance from appellee Mrs. Hughes of April 28, 1909, with reference to the time limit within which he had to cut and remove the *664timber therein conveyed? For appellant as we have seen only undertook to make good such rights.

It was held in Clozelle Ladnier v. Ingram Day Lbr. Co., 100 So. 369, 135 Miss. 632 (May 19,1924), that a deed to growing timber containing a clause limiting the time within which the vendee must cut and remove the same vested the title to the timber in the vendee subject to defeasance as to the timber not removed within the time limit; that as to all not removed within the time limit the title reinvested in the grantor without any action on his part. However, the said conveyance from appellee Mrs. Hughes to appellee Leavenworth is not open to interpretation so far as this question is concerned. It simply provides in so many words that at the end of the thirteen-year period all the timber covered by said deed should become the property of the grantor, appellee Mrs. Hughes. In other words, by the terms of the deed itself appellee Leavenworth got the title to the timber he purchased subject to be defeated by reinvestment in appellee Mrs. Hughes as to all of that not cut and removed within the period of thirteen years.

At the time of the filing of the bill in this cause did appellee Leavenworth own the cottonwood timber on appellant’s Woodstock plantation which he claimed and was proposing to cut and remove? This question is answered in the negative largely by what has already been said. As we have seen under said conveyance of April 28, 1909, it is provided plainly that at the end of the time limit of thirteen years all that part of the timber conveyed still standing should become the right and property of the grantor, the appellee Mrs. Hughes. The said indemnity contract only undertook to insure that appellee Leavenworth should have all the rights he was entitled to under said conveyance to him from appellee Mrs. Hughes. It certainly undertook to convey no greater rights. Putting it differently, said indemnity contract in connection with said conveyance of appellee Mrs. *665Hughes to appellee Leavenworth undertook and did provide the latter, in order to save him from loss, the Woodstock plantation in addition to what he already had, the Timberlake plantation, from which to get the six million feet of timber to which he was entitled. But it is plainly apparent under said instruments construed together that after the expiration of said thirteen-year time limit appellee Leavenworth’s rights ceased and all timber on said Timberlake plantation conveyed to him not cut and removed became the property of the grantor in said conveyance, and the appellant became entitled to a reconveyance from appellee Mrs. Hughes under the third paragraph of said indemnity contract to all the cottonwood timber therein conveyed to her. The time limit of thirteen years having expired on June 1, 1922, and appellee Leavenworth having made no effort to cut and remove cottonwood timber from said Woodstock plantation until after the expiration of said time limit, we hold that whatever rights he had to cut and remove timber from either of said plantations had expired when the bill in this case was filed.

Reversed and remanded.

Reference

Status
Published