Michael v. Brown, 215 N.C. 655 (1939)

May 24, 1939 · Supreme Court of North Carolina

215 N.C. 655

J. P. MICHAEL v. W. F. BROWN et al.

(Filed 24 May, 1939.)

Deeds § 24 — Evidence held insufficient to show that grantee cut timber from lands of grantor not embraced in the timber deed.

This action was instituted by the grantor in a timber deed to recover for timber which he alleged had been cut from other of his lands not embraced in the timber deed. Plaintiff admitted that he had been paid for all timber cut from the land embraced in the deed. The description of the land in the timber deed required reference to other instruments as an aider to make certain the land therein described. Plaintiff’s agent, who negotiated the sale of the timber, testified that he went upon the land with the grantee and pointed out the boundary, and that neither the grantee nor his assignee had cut any timber from land not embraced therein. Held: Defendant’s motion of nonsuit was properly granted.

Appeal by plaintiff from Olive, Special Judge, at October Term, 1938, of DavidsoN.

Civil action to recover damages for alleged trespass in wrongfully cutting timber on plaintiff’s land.

On 25 September, 1934, the plaintiff, by deed duly executed, sold to J. L. Bullard, for a consideration of $3,050.00, “all the sawable timber on the following described lands, owned by party of the first part, situate in Tyro Township (Davidson County), adjoining the lands of Byerly and Jordan, J. A. Myers’ heirs, Gid Sink and others, known as the Betsy Sowers land and containing about one hundred (100) acres, more or less.”

On 23 August, 1935, J. L. Bullard assigned and conveyed all his right, title and interest in said timber to the Piedmont Lumber Company.

Thereafter, on 20 November, 1935, the plaintiff, for a consideration of $550.00, repurchased from the Piedmont Lumber Company all the uncut timber then on the land and covered by the original timber deed.

It is alleged that the defendants, during the time they were cutting and removing the timber conveyed in this deed, overstepped the boundaries of the “Betsy Sowers” tract and cut a quantity of timber on an adjoining tract of 36 acres, belonging to the plaintiff, and known as the “Leonard land.”

There was evidence tending to show that the defendants cut timber on the tract designated by the plaintiff as the “Leonard land,” but they contend that it was embraced within the boundaries of their deed.

Tbe plaintiff admitted that he had been paid for all the timber covered by the contract, and further testified: “There is nothing in the contract to show just where the timber is located.”

Conrad Michael, witness for plaintiff, testified in part, as follows: “I am a nephew of the plaintiff. . . . My uncle owned various tracts of land in the neighborhood — one known as the Sowers place. . . . The property involved in this case is known in that section as the Sowers place. . . . My uncle described the land that he wanted me to sell the timber on. (Witness draws sketch on board to illustrate). My uncle says there was about 100 acres in those boundaries. . . . The 100 acres described in the deed known as the Betsy Sowers (place) is the land inside the marks drawn by me. The land he is now calling the ‘Leonard land’ is included in that tract. . . . The tract was known and called the Sowers place. That is the way it was put in the contract. . . . After uncle asked me to sell it, and I found a buyer in Bullard, I went out there with Bullard. I showed him the boundaries that I am now showing the court and jury. I sold him the timber on the 100 acres in these boundaries for $3,050.00 as agent for my uncle. ... I didn’t see any trees cut outside of the boundaries. . . . I went out there about the time my uncle bought the timber back. There had been no timber cut outside of the lines that I have just described that I know of. . . . The drawing I have made on the board, as I understand it, is the land uncle asked me to sell the timber on as his agent. There was no timber cut outside of these boundaries to my knowing, and I was out there after they quit cutting.”

W. F. Brown was named as a defendant because the plaintiff did not know whether the timber in question was cut by him individually or by the corporate defendant of which he is president.

From judgment of nonsuit entered at the close of plaintiff’s evidence, he appeals, assigning error.

J. Eugene Snyder and McCrary & DeLapp for plaintiff, appellant.

Martin & Brinldey for defendants, appellees.

Stacy, C. J.

The testimony of plaintiff’s nephew and agent, Conrad Michael, who negotiated the sale, is in full support of the judgment of nonsuit. The record discloses that plaintiff has been paid for all timber cut by the defendants. The timber was sold according to the boundaries pointed out by plaintiff’s agent. The uncut portion of the timber was later repurchased according to the same boundaries. “That is the way it was put in the contract,” says Conrad Michael, and “the land uncle is now calling the ‘Leonard land’ is included in that tract.” Plaintiff admits, “there is nothing in the contract to show just where the timber is located.” An aider under tbe doctrine of id certum, est, etc., is required for its exact location. R. R. v. Olive, 142 N. C., 257, 55 S. E., 263.

As we- understand tbe record and interpret it, tbe plaintiff bas no just cause for complaint. Tbe timber cut was tbe timber wbicb tbe plaintiff sold and tbe defendants bought. Tbe nonsuit will be sustained.

Affirmed.