Southern Plantations Co. v. Kennedy Heading Co.

1. Appeal and Error. Questions of fact. Conflicting evidence. Corporations. Validity of Conveyance. Absence of corporate seal. Logs and logging. Conveyance of standing Umber. Warranties. School lands. Statutes. Outstanding title. Code 1906, section 4702. The findings of fact by a chancellor, where the evidence is conflicting,, are not subject to revision by the supreme court on appeal. 2. Corporations. Validity of deed. Absence of corporate seal. A deed by a corporation to which the corporate seal has not been affixed may be inoperative at law, but will be enforced in a court of equity. 3. Conveyance. Warranties. Logs and logging. Where the warranty in a deed to standing timber, in express terms, covers all the timber on a certain described tract of land, it cannot, be restricted by implication because of recitals in other portions of the deed, unless the intention so to do is expressed in clear and' unambiguous language, and the fact that the deed on its face-shows that the grantor’s title is defective is immaterial in so far as • the grantee’s right to recover for a breach of warranty is concerned. 4. Same. Simply because a deed described the land as sixteenth section land, it did not thereby disclose that the grantor had not the right to dispose of the timber for commercial purposes, since under Code 1906, section 4702, such a right could have been lawfully acquired. 5. Corporations. Conveyance of standing timber. Warranty. A warranty in a deed by a corporation that it had the right to sell the timber for commercial purposes on sixteenth section land, and that in the event it had not such right, to acquire it for the benefit of the grantee when called on so to do and in default thereof to refund the purchase money therefor, is not void for the reason that it is an agreement to protect the grantee in doing an illegal act, since such right may be acquired under section 4702 of the Code of 1906. 6. Covenant op Warranty. Performance by purchase of oidstanding title. While it is true that if prior to eviction a grantor of land, with covenant of warranty, purchases an outstanding title, it inures to the benefit of the grantee and operates as a discharge of the warranty; yet where the purchase of a paramount title is made by the grantor after eviction of the grantee, or after suit began, when the grantee has the right of instituting a suit without actual eviction, he cannot compel the grantee to accept such after acquired title in satisfaction of the covenant of warranty, or in mitigation of damages for the breach thereof.

Appeal from the chancery court of Yazoo county. Hon. Or. Or. Lyell, Chancellor. Suit by the Kennedy Heading* Company against the Southern Plantations Company. Prom a decree for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. Our associate, Judge Harper, having covered the question of whether or not the general warranty in the deed covered the land in question in the sixteenth section, or whether or not the warranty was restricted to other lands than the sixteenth section, we will have very little to say on that subject. We wish to say, however, that the deed on its face shows that the land in this sixteenth section is public school land, the lease to which did not expire until the year therein named. This shows upon its face an intention of parties to restrict the warranty to the lands conveyed. It would have been useless to have referred to the land which was described by the government description of the sixteenth section as being public school land, the lease to which expired at the time named, unless there was some purpose or some intention in the minds of the parties at that time. The court will also recall that this deed was executed shortly after the last decision in the sixteenth section cases, after there had been a change in the bench, and when the suggestion or error was sustained, Judge Mayes having succeeded Judge Truly on the bench. We wish to call the court’s attention to the case of Hull v. Hull, 29 Am. St. Eep. 808, where it is held that where a grantor conveys' his right, title and interest, though it contains in general terms a covenant of general warranty, the covenant is regarded as a restrictive one, and limited to the estate therein conveyed, and not one defending generally the land described. A covenant of warranty is-intended to defend only what is conveyed, and would not enlarge the estate conveyed. Waits on Actions and Defenses, 371; 3 Washburn on Eeal Property, 655; Eawle on Covenants, 420; Sweet v. Brown, 45 Am. Deo. 243; Allen v. Holton, 20 Pick. 458; Ballard v. Child, 46 Maine, 152; McNear v. McComber, 18 Iowa, 12; Kimball v. Semple, 25 Cal. 452; Blanchard v. Brooks, 12 Pick. 47; Adams v. Foss, 52 Am. Dec. 237. In the case of Hull v. Hull above referred to, the grantors conveyed their interest only, as it was held by the court, as the land was in dispute, and another party seemed to have a superior title. The court held that the warranty was restricted to the title or interest which the grantor had therein. So we contend in this case that the deed upon its face showing that the party only owned the sixteenth section with á leasehold therein, that the time of the termination of the lease was especially mentioned, and with hundreds of other acres of land being conveyed, that the court has held that the warranty is restricted to the land owned in fee simple, and only to warrant the leasehold interest to the sixteenth section. This carries with it only such rights as the grantors had, which were- to cut the timber for certain farming and other purposes well established by the authorities of this court, and not to sell the timber or cut it for merchantable purposes. In our judgment the chancellor erred in holding that the after-acquired title of the appellant here did not inure, to the benefit of the appellees, or complainants below, and that the plea was not a good one and not a bar to a recovery in this action of more than nominal damages. It is our contention, and we shall hereinafter cite authorities to sustain that contention, that this title after acquired, even though it was four years after the execution of the original conveyance, and three years before the expiration of the time named therein, inured to the benefit of the complainant, and was a complete bar to his recovery of anything except such special damage as he sustained because of the breach of the warranty. We contend that the only damage, after a good title had been .given, was interest on the purchase money, and this had been tendered. It is our contention that the- after-acquired title of the defendant, the warrant here from the board of supervisors of Yazoo county, can be pleaded in mitigation of damages, and this contention is supported by the great weight of authority. The Supreme Court of Alabama in the case of Sayre v. Sheffield Land-Go. 18 So. 101, held that action for breach of warranty, where it appeared that when the deed was made the defendant had no title, but acquired title thereafter, that the complainant could only recover nominal damages, as the title acquired by the defendant inured to the plaintiff’s benefit. In the case of King v. Gills on, 83- Am. Dec. 269, the supreme court of Illinois held that only nominal damages could be recovered for the breach of covenant of seizin where the grantor acquired title after the suit was brought. The distinction seems to be that the after-acquired title can be pleaded in mitigation of damages at any time up to the assessment of damages by the court. The supreme court of Pennsylvania, in the case of Brown v. McCormick, 31 Am. Dec. 450, holds to the same effect. In the case of Baxter v. Bradb-ury, 20 Maine, 260, 37 Am. Dec. 49, the supreme court of Maine holds that in an action for the breach of covenant of seizin, the defendant may bring in evidence deeds to himself subsequent to his wit,” and then follows a description of all of section 16 except that part of it belonging to the Grand Oak plantation, and that the portion of said section 16 conveyed is public school lands to which the lease expired May 27, 1954. Whatever else may he said of the deed it is clear that the grantor conveyed and expressly warranted the timber on the sixteenth section. Dunbar et al. v. Aldrich, 31 So. 341; 2 Ballard on Beal Property, See. 83; Shaw v. Bisbee, 84 Me. 400; 22 Atl. 361; Foote v. Clark, 14 S. W. 981; 2 Dievlin on Beal Estate, Sec. 897, 8 Am. & Eng. Ency. Law, 86, 87, and authorities! cited; also 11 Cyc. 1066; 14 Cent. Digest, Sec. 39 p. 74. We respectfully submit that by the express terms of the timber deed, the timber on the sixteenth section was conveyed in fee under an express warranty of seizin and right to convey, and that there was no modification by implication or otherwise, of these covenants in the deed. Second: Is the cutting of the timber for commercial purposes by the lessee of a sixteenth section a crime; if not, does such cutting of such timber for such purposes constitute a civil wrong against the state or county? In answer to the first clause of this proposition we say that it was not a crime for the lessee of a sixteenth section to’ cut timber therefrom for commercial purposes; and as to the second clause of the proposition we say, that such cutting for such purposes was an act of waste in the nature of a civil wrong against the remainderman, the State, and for which the lessee would be liable in damages to the board of supervisors of the county, who succeeded the trustees of the township, as trustees of the sixteenth section, for the value of the timber cut. Warren County v. Gans, 80 Miss. 76; Moss Point Lbr. Co. v. Harrison County, 89 Miss. 448, 89 Miss. Beo. Quotation from p. 507; Moss Point L. Co. v. Harrison County, 89 Miss. 448. These authorities show conclusively that a sale by a lessee of a sixtenth section, of the merchantable timber standing' thereon for commercial purposes, is a nullity and passes no title to the vendee, and that the trustees of the township are not divested of their title by the sale, and that replevin would lie for the trees cut. Third: Is the warranty so far as it affects the timber on the sixtenth section of land illegal and void? We answer this proposition in the negative under the repeated decisions of this court. Peevy v. Jones, 71 Miss. 647; Jackson Naval Stores Go. v. Tootle, 96 Miss. 486. See concurring opinion of Judge Whiteield in Moss Point Lbr. Go. v. Harrison County, 89 Miss. 559; Warren County v. Cans, supra; Jefferson Davis County v. Lumber Co., 94 Miss. 530; Jefferson County v. Bass, 94 Miss. 538; 2 Underhill on Landlord & Tenant, p. 722, and authorities cited; Dry Dock Co. v. Armstrong, 17 Fed. 216.