Tbe authorities in this State sustain the doctrine for which the plaintiff contends, that deeds conveying timber, with a time specified for cutting, pass “an estate of absolute ownership, defeasible as to all timber not cut and removed within the specified period,” and that a clause inserted in such deeds extending the time for cutting, upon the performance of certain conditions by the vendee, “is in the nature of an option, and it is held by the great weight of authority that contracts of this character do not of themselves create any interest when the conditions are not performed and work a forfeiture when not strictly complied with.”
We do not think, however, these principles have any application to the deed now before us. No condition is imposed on the vendee, nor is it required to pay money or do any other act before exercising the right to cut within five years from the date of the deed, and the right to do so is granted as a present interest'hy the deed-.
The two terms of two and five years are mentioned in the deed because the plaintiff was anxious to have the timber cut as soon as practicable, and the defendant thought it might require five years, and the consideration for the longer term was not something to be done thereafter by the purchaser, but the price agreed to be paid for the timber.
Undoubtedly it was the duty of the defendant to exercise ordinary care to cut the timber within two years, because the longer period is given only in the event that it may be necessary, but his Honor finds, and we approve the finding, that the defendant commenced cutting, as soon as possible,- and prosecuted the work diligently, and that “the defendant was unable to cut and remove all said timber during the term of two years from 28 January, 1918, and additional time is necessary for the removal of the same.”
These findings, while not binding on the parties if issues should be submitted to a jury, and are not conclusive on us, were properly made by the judge on a motion to dissolve a restraining order.
Taylor v. Manger, 169 N. C., 728, and Ricks v. McPherson, 178 N. C., 154, furnish illustrations of cases where the 3,’ight to cut during the longer period mentioned in a deed passed by the deed, and was self-executing without action on the part of the purchaser. In the deed before us, the purchaser is not required to pay anything or to give notice or do any other act before exercising the right to cut during the full period.
We are of opinion, therefore, the defendant had the right to continue cutting after the first period of two years expired, and that the restraining order was properly dissolved.
Affirmed.