Court of Appeals of Kentucky
Lucy Taylor Vs. Calvin Hurst
ACTION: Reversed and remanded
Court of Appeals of Kentucky
HURST ET AL.
v.
TAYLOR ET AL.
Feb. 19, 1908.
HOBSON, J.
Appellees, who are the widow and children of Harrison Taylor, brought this suit against appellants Calvin Hurst, etc., to restrain them from cutting some poplar timber on a tract of land in Knox county. Calvin Hurst and his associates claimed the timber under a contract made in 1889 by Harrison Taylor with E. F. Arthur. There is no controversy as to the title to the land. All the parties admit the title to the land to have been in Harrison Taylor. The only question in the case is what rights Arthur took under his contract, and whether these rights had passed to the appellants. The circuit court adjudged the plaintiffs the relief sought, and the defendants appeal.

The deed from Taylor to Arthur is in these words:
"This indenture made and entered into this June 21, 1889, by and between Harrison Taylor and his wife, Mary Taylor, of the county of Knox and state of Kentucky, of the first part. Witnesseth, that for and in consideration of twenty-eight hundred and forty- four dollars, in hand paid by E. F. Arthur, party of the second part, the receipt of which is hereby acknowledged, by the parties of the first part, the parties of the first part hereby alien, sell and convey unto the said E. F. Arthur of the second part, sixteen hundred and twenty-five poplar trees, be the same more or less, all of which are standing in Knox county, Kentucky, on the waters of Stinking creek, except a few which stand on the waters of Straight creek, in Bell county, Kentucky, in the John Hollow Gap, being the poplar timber which the parties of the first part executed a bond to E. F. Arthur on March 4th, 1889, and being the poplar timber owned by the parties of the first part on the 4th day of March, 1889, all of which trees are marked A, and also those that are not marked, on the lands above mentioned, except those on the Buck Hollow and the field adjoining it and also except those below where he heretofore branded, all of said timber stands on Stinking creek and the waters thereof, except those standing on Straight creek.

It is further stipulated and agreed that for and as part consideration of the amount aforesaid stated that the said E. F. Arthur is to have all necessary roads and rights of way to and from said lands and timber and over same to said timber for the purpose of removing and hauling the same away and off of said premises, and also the right and privilege to cut, saw and manufacture same on the lands hereinbefore described, also to build dams on the streams to run said timber off of the lands without additional cost to the said E. F. Arthur, so as to not interfere with any growing crops, this timber shall be removed in a reasonable time and the possession privileges returned back to the parties of the first part. The parties of the first part hereby covenants and warrants the title to the said timber unto the said E. F. Arthur with covenant of general warranty. The said Mary Taylor hereby joins in this conveyance and grants and relinquishes all the rights inchoate or otherwise that she has or may have unto the party of the first part."

After this deed was made there was some dispute between Arthur and Taylor as to what their rights were, and in 1898 the following written contract was entered into: "This contract, made and entered into this March 28, 1898, between E. F. Arthur and A. A. Arthur of the first part, and Harrison Taylor, of the second part: That upon a final settlement on the Harrison Taylor timber the said parties of the first part agree to pay to the second part $175 in disputed poplar timber sold by said Taylor to the said Arthur, lying and being on the right-hand side of the creek, as you come down the creek, at the prices the said Arthur paid the said Taylor for said timber. If not enough of said disputed timber to pay said $175, said Taylor is to have enough on the same side to finish the amount of the $175. The said Taylor also relinquishes all his claim to all the poplar timber branded, and also the unbranded timber from 7 feet and upwards in circumference that the former deed calls for." Arthur, and those claiming under him, cut a large portion of the timber, and he then sold and conveyed what was left upon the land to Grant Taylor on September 28, 1899.

Appellants Calvin Hurst and his associates claim under Grant Taylor in this way--they claim that Grant Taylor made a deed to his wife, Docia Taylor. After Grant Taylor's death she married Jesse Brock, and after her marriage with Brock she conveyed the timber to appellants. All the transfers are produced except the deed from Grant Taylor to his wife. The proof for appellants is that after she married Brock, one night about 11 o'clock the house burned down, and the deed, which had never been recorded, was burned with the other papers in the house. Without this deed appellants show no title to the timber, and so the existence of the deed is the first question to be determined in the case. A. B. Smith, a lawyer living at Pineville, testified that shortly before Grant Taylor's death he and his wife brought to him a deed which had been signed, for him to examine it, that he read it, and that by it Grant Taylor conveyed all of his real estate and personal property to his wife Docia Taylor. Another witness states that the deed was made, and that he read it more than once. Two witnesses testified that Grant Taylor told them he had made the deed. Two or three witnesses testified that after Grant Taylor's death Harrison Taylor tried to buy the timber from Docia Taylor, who was then Docia Brock. And two or three witnesses testified that when the property was appraised after Grant Taylor's death this deed was produced and shown to the appraisers. That the house was burned down and all of Mrs. Taylor's papers were burned up in it is not disputed, nor do we find in the evidence any contradiction of the testimony as to Harrison Taylor trying to buy the timber from Docia Brock after Grant Taylor's death. On the contrary, it appears that Docia Brock, on September 7, 1904, brought a suit in the name of herself and her children to restrain trespasses on some land owned by Grant Taylor, and in this suit she did not say anything about the deed from her husband, Grant Taylor, to her; but this evidence, while it is competent to contradict the testimony of Docia Brock, is not competent for any other purpose, as, before she brought this suit, she had in April, 1904, sold and conveyed the poplar timber in controversy to appellants. No statement that she made afterwards, not in the presence of appellants, is competent against them, except for the purpose of contradicting her as a witness, and she was not asked, when her deposition was taken, about this statement, and, therefore, it cannot be considered even for that purpose; but, waiving this, the woman in bringing her suit may have left the matter to her attorney and not have understood that what was written in the petition was inconsistent with her claim to the land, for it is manifest that long before this suit was filed Harrison Taylor and his family treated her as the owner of the timber in controversy. Taking all the evidence into consideration, we find that this lost deed is as well proven as could be reasonably expected under the circumstances. The widow testified unequivocally to the conveyance; but, if we leave out her testimony, we think there is sufficient evidence to sustain the finding in favor of the existence of the deed. It is also insisted for appellees that the contract between Harrison Taylor and Arthur, made in 1898, was without consideration. It is said that Arthur had only a reasonable time within which to get the timber out; that according to the proof a reasonable time for getting this poplar timber out was five years, and that eight or nine years had elapsed when this agreement was made; that at this time the title to all of the timber was vested in Harrison Taylor; and that his relinquishment of part of the timber in consideration of the release by Arthur to him of $175 worth of trees was without consideration. But the proof for appellants is that Arthur went in to cut the timber about the year 1891 or 1892, and that Harrison Taylor ran him out, or ran his men out. Harrison Taylor was regarded as a dangerous man. He carried a Winchester rifle and threatened to shoot anybody who cut the trees. The dispute seems to have been about various matters. At one time it was as to whether Arthur was entitled to any of the trees except those that were branded. At another time it was about the road or right of way, and at another time Taylor insisted that Arthur's time was out, or that he had cut all the trees that were coming to him. The person who drew up the written contract between Arthur and Taylor testified that the trees which were branded came to a certain sum, and that Taylor then proposed to Arthur that, if he would add to it a certain amount, he would include in the contract the other trees not branded which measured seven feet or more in circumference. He said that this was agreed to and the additional words were put in the deed. The compromise agreement of 1898 seems to have made that definite which the original writing left indefinite. The rule is that, if a right is in good faith asserted, a bona fide compromise of such a right is not without consideration. At the time the compromise was made in 1898, it had never been determined in this state what were the rights of parties under timber contracts, where the timber was not taken out in the time fixed in the writing. In some states it had been held that the purchaser would have the right after the time to take out his timber by paying the owner of the land such damages as he thereby sustained. In other states it had been held that such a contract only passed the right to so much timber as was in fact taken off within the time specified. Since this contract was made this court has adopted the latter rule; but at the time the contract of 1898 was made there was a conflict of authority on the question, and no rule had been laid down in this state. If the evidence for the appellants is true, the conduct of Harrison Taylor in intimidating Arthur and his men and preventing them from getting out the timber was such as to estop him from relying on the fact that the timber had not been gotten out within a reasonable time.

We, therefore, conclude that the compromise agreement made in 1898 was not without consideration, and that it is binding upon the parties. There was no delay after the making of that contract in getting out the timber except such as Harrison Taylor himself caused. The purpose that Arthur had in selling the timber to Grant Taylor was that he supposed that Harrison Taylor would allow him to take it out; but there was the same violence used by Harrison Taylor toward Grant Taylor, his son, as against Arthur. Grant Taylor was killed. Brock killed Harrison Taylor; and we do not see that there was any such delay after the year 1898, which Harrison Taylor could complain of, as to affect the rights of Grant Taylor and those claiming under him to this poplar timber.

On the return of the case to the circuit court, that court will ascertain, by commissioners appointed for that purpose, what trees standing on the land appellants are entitled to under the deed from Harrison Taylor to Arthur, and under the compromise agreement made in 1898 between them, and he will adjudge appellants entitled to these trees and to a right of way to remove them. Appellants are entitled to all of the poplar trees on the land named which were branded in 1889, or which were seven feet and over in circumference in 1898. The judgment is reversed, and cause remanded for a judgment as above indicated, and for further proceedings consistent herewith.



   

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