
    Linder BLAIR and Wanda Blair v. KIMBERLY-CLARK CORPORATION.
    84-369.
    Supreme Court of Alabama.
    June 28, 1985.
    
      Harvey B. Campbell, Jr., Talladega, for appellants.
    John J. Coleman III and Marshall Tim-berlake of Balch & Bingham, Birmingham, and R. Blake Lazenby of Wooten, Boyett, Thornton, Carpenter & O’Brien, Talladega, for appellee.
   FAULKNER, Justice.

Linder Blair and Wanda Blair appeal from a summary judgment granted in favor of Kimberly-Clark Corporation in a suit for wrongful cutting of timber and for conversion and trespass. We affirm.

The facts are undisputed in this case. In a warranty deed dated June 24, 1975, C.L. Blair and his wife, Pearlie Blair, conveyed certain property in Talladega County to their son Linder Blair and his wife Wanda. Included in the deed was a clause by which C.L. Blair retained timber and mineral rights as follows:

“One of the Grantors herein, C.L. Blair, hereby retains the right to cut the timber from the premises and further retains all mineral and mining rights including the right to sell any minerals on the property or to mine same. The right shall not be retained as to Pearlie B. Blair.”

On June 2, 1981, C.L. Blair conveyed to Kimberly-Clark Corporation “the right to cut and remove all pine and hardwood saw-timber and pulpwood from the property for a thirteen month period, ending July 1, 1982.” Kimberly-Clark Corporation paid $24,675.00 in consideration for the timber rights.

Prior to this agreement on May 29, Lin-der and Wanda quitclaimed to C.L. “all right, title and interest in and to all standing timber with a right of ingress to and egress from said timber or trees, when and as he, his purchasers and assigns shall think proper....”

C.L. Blair died in December 1981. Between January 3 and June 30, 1982, representatives of Kimberly-Clark Corporation entered onto the property and cut timber. Linder and Wanda brought suit, contending that the corporation had no right to cut the timber because its interest in the timber had ceased when C.L. Blair died.

The issue before us is whether the trial court properly determined as a matter of law that Linder and Wanda Blair did not own an interest in. the timber, which they contend was improperly cut by Kimberly-Clark Corporation.

Upon review, we find that the 1975 deed is unambiguous and clearly indicates that C.L. Blair intended to retain the right to cut timber from the property. There is no indication from the “four corners” of the instrument that he intended to reserve any interest less than a fee simple interest in the timber. According to Alabama Code (1975), § 35-4-2:

“Every estate in lands is to be taken as a fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended.”

Considering the deed, it clearly appears that the grantor retained a fee simple interest, Union Oil Co. v. California v. Colglazier, 360 So.2d 965 (Ala.1978), and he thereby retained the right to cut and remove the timber and to sell and convey his interest therein. Heflin v. Bingham, 56 Ala. 566, 574-75 (1876). The interest, being both assignable and inheritable, did not terminate upon C.L. Blair’s death.

We are also not persuaded that the quitclaim deed from Linder and Wanda back to C.L. Blair for his “natural life” in any way diminishes the fee simple interest previously retained by C.L. Blair. A quitclaim deed can convey nothing more than what the grantor actually owns. Reid v. Southeastern Materials, Inc., 396 So.2d 667 (Ala.1981); Benedict v. Little, 288 Ala. 638, 264 So.2d 491 (1972); Dunn v. Cambron, 268 Ala. 651, 109 So.2d 705 (1959). Therefore, the judgment is due to be, and it is hereby, affirmed.

AFFIRMED.

ALMON, EMBRY and ADAMS, JJ., concur.

TORBERT, C.J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

While I concur in the holding of the main opinion, I wish to point out one matter. The opinion refers to Code 1975, § 35-4-2, which supplies a rule of construction to determine what “estate in lands” a conveyance creates. The instrument in question here conveys timber rights.

Section 35-4-363 reads:

“All standing timber and trees, and cutting rights with respect thereto, while owned by or mortgaged to anyone other than the owner of the land upon which such timber or trees are located, under or by virtue of any conveyance, mortgage or other instrument executed hereafter by the owner or owners of the entire fee simple title to the timber or trees or by the owner or owners of the full cutting rights with respect thereto shall be and shall be considered as chattels and not real property, or any interest therein, in all instances where the right or obligation to cut and remove such timber or trees is limited to a period not exceeding 10 years from the date of the conveyance, mortgage or other instrument transferring such timber or trees, or rights with respect thereto.”

Therefore, under some circumstances standing trees and timber are deemed chattels. In this case the timber rights are owned by someone “other than the owner of the land upon which such timber or trees are located, ... by virtue of [a] conveyance ... by the owner ... of the entire fee simple title to the timber or trees.... ” The final requirement of § 35-4-363 is that the section is applicable “in all instances where the right or obligation to cut and remove such timber or trees is limited to a period not exceeding 10 years.... ” The instrument itself has no such time limit. Section 35-4-360(a) provides that if the instrument itself sets out no time within which to cut and remove the timber, then “the grantee shall have 10 years in which to do so.” Therefore, it appears that we are not dealing with an estate in land but an estate in personalty. However, the same rules of construction as set forth in § 35-4-2 apply.  