Moring v. Ward, 50 N.C. 272, 5 Jones 272 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 272, 5 Jones 272

WILLIAM MORING v. GEORGE W. WARD.

A paper-writing signed by the owner of land, acknowledging the receipt of a certain bond for money, for the “ purchase of the cypress timber,” on the land, with a further agreement, to let the purchaser have a certain length of time “ to cut the timber off of the land,” was Held to create an estate, so as to enable the purchaser to occupy the land and take the cypress timber for the time stated in the instrument.

This was an action of tkespass, tried before Dirac, J., at the last Eall Term of Bertie Superior Court, and the counsel for the parties made, and submitted to the Court, for its judgment, the following:

CASE AGREED.

“ On the 16th of November, 1851, one Samuel S. Simmons made a contract of purchase of certain growing cypress trees from the plaintiff, and took from him a paper-writing, of which the following is an exact copy :

“ Received of Samuel S. Simmons, his obligation for eight hundred dollars, for the purchase of the cypress timber I own, lying on Cub Cypress Broad Creek,” (describing it by definite boundaries). “ I further agree, to let the said Simmons have eight years to cut the timber off of the said land. Given under my hand this 16th November, 1851.

(Signed,) 'William: MoriNG.”

“ Said cypress trees, and the land on which they grew, were, at the time the said paper was given, owned by the plaintiff, in fee, and were in liis possession.

“ Said Simmons, on receiving said paper, gave to plaintiff the following paper, which is the same spoken of in the obligation above set out.

££ §800. Six months after date, I promise to pay to William Moring, or order, eight hundred dollars, for value received. Interest from date. November, 1851.

(Signed,) S. S. SiMMoxs.”

“ On 21st February, 1856, Simmons made a deed of trust, ■conveying all his estate, of every kind, to trustees, for the payment of debts. Tlie said debt of eight hundred dollars, due the plaintiff, is not in way provided for in the said trust, whilst it eonveys £ the interest of the said Simmons in the said timber trees.’ Said Simmons has not cut any part of said trees, nor had he made any arrangement to do so, or incurred any expense concerning them.

££ Said Simmons has never paid any tiling on the said note. By his deed of trust he has stripped himself of all his estate, and thereupon became, and is, insolvent, to the extent of several hundred thousand dollars. The plaintiff sued on the said note, and, at May Term, 1856, got judgment; several executions on which have been returned, “ nothing to be found.”

“ Within ten days after Simmons made his trust, plaintiff notified him and his trustees, that the license to cut the said timber, if any had been given,, was thereby revoked, and requested them severally to. return the paper which he had given Simmons, and take back Simmons’ note, which they, each and all refused to do-.

K The trustees of Simmons never did any tiling in regard to the said timber trees, except to sell their interest in them to the defendant, which they did some two months before this suit was brought.. Before the defendant bought, he knew that the plaintiff had warned Simmons and his trustees not to out the said timber, that the license had, by plaintiff, been revoked, and that nothing- had been paid to the plaintiff., As soon as defendant purchased, the plaintiff warned! him not to interfere with the said timber trees, nor go on the said land, and this before- the defendant bad incurred any- expense, or made any arrangement to cut. The day before- the writ was brought, the-defendant went upon the land and cut one cypress tree, for which this suit is brought. The plaintiff was living upon and cultivating a part of the tract, of which the part above described, is a part.”

It was agreed, upon the foregoing case, that the Court might enter a verdict and render a judgment for five cents, if the plaintiff be entitled to recover; otherwise, a judgment of nonsuit. TIis Honor gave judgment, pro fomw, for the plaintiff'. Defendant appealed.

Winston, Jr., for the plaintiff.

II. A. GilUam and Smith, for the defendant.

Pearson, J.

A lease for years is a contract, by ■which one agrees, for a valuable consideration, called rent, to let anotN er have the occupation and profits of land for a definite time. At common law, a lease could be made by parol, for any number of years, but entry was required to execute tbe contract and vest an estate as a term for years.

Not only tbe land, but any part thereof, tbe herbage, trees, minerals, i. e., coal, copper, &c., could be made tbe subject of a term for years.

Tbe rent or consideration was most usually reserved to be paid annually; in which case, if is was tbe - value, or nearly so, it was called “ raólü rent;” but tbe whole might, according to tbe contract, be paid at tbe outset, and was then called “ a fine,” and in such cases it was usual to reserve something nominal, i. e., “ a peppercorn,” to be paid annually, during tbe continuance of tbe term. This was done simply to mark tbe relation of the parties, and in long leases, was a prudent precaution, lest peradventure tbe lessee, or his assignee, might seek to make an improper use of tbe long possession, and disavow tbe estate of tbe lessor. Eor instance, suppose tbe value to be $100 : if, by tbe contract, it was to be paid annually, for eight years, tbe lease would be upon rack rent; if tbe $800 was paid down, the lease would be upon “ a fine.”

In our case tbe contract is in writing, as required by statute ; tbe statute of uses transfers tbe legal estate, and perfects the term without entry; a definite time, i. e., eight years from tbe date of tbe covenant is fixed ; a note for $800 is accepted as “ fine,” and there is a subject capable of being leased i. e., tbe cypress trees on a tract of land, tbe boundaries of which are set out. So, the question is narrowed to this : "Was it tbe intention of the parties to make, by this instrument, a mere personal contract,- tbe remedy, for a breach of which, would be against Moring or his personal representative in damages, and would not affect the land in tbe hands of the purchaser; or

Was it the intention to make a term for years, and create an estate, which is protected by an adequate remedy ?

The rule, ut res magis valeat guampereat, and every principle of construction, force us to the conclusion, that it was the intention to create an estate, so as to enable Simmons to occupy and take the cypress trees for eight years, and not to leave it in the power of Moring to deprive him of the enjoyment thereof. Assuming this to have been the intention, the authorities cited in the argument are full, to sustain the position that no technical words, or set form, are required to make a valid lease for years.

A term for years, being assignable, it follows that the defendant was possessed of an estate, which gave him the right to enter.

The judgment is reversed, and upon the agreement, judgment of nonsuit.

Pee Cueiam, Judgment reversed..