
    N. Y. & E. T. Iron Co. v. Greene County Iron Co.
    1. Bead Estate. Timber sold by cord is personalty. A contract in writing was made to sell all the timber on land of vendor at ten cents per cord, to be paid as fast as used. This is a contract for the timber as cut down and corded, and hence is one in regard to personalty. .
    2. Same. Purchaser of land at judicial sale. The land upon which the timber was growing was sold after death of vendor of the timber, and bought by the defendants with knowledge of the contract for the timber. They are not, therefore, innocent purchasers, but stand in the shoes of the vendor of the timber, and can set up no rights which he could not. They are, therefore enjoined from cutting timber already contracted for by complainant, and from interfering with the right ’ of ingress and egress necessarily involved in the contract to cut and carry away the timber.
    3. Same. Contract not too vague. It is no valid objection to a contract to sell all the vendor’s timber on his land, that the contract does not describe the extent of the land to which it was meant to apply. Although it appears that the vendor owned 714 acres, as this was in one body, and was all the land owned by vendor, the words “ all the timber on the land ” are sufficient to cover the timber on the entire 714 acres.
    5. Question Suggested — Not Decided. It js claimed by the purchasers at the judicial sale that by fraud the timber contract was read to the former owner differently from the terms of the written instrument signed by him, then feeble, sick and dying. As respondents knew the terms of the timber contract when they bought, it is doubtful but not' decided whether they can raise any such question.
    EROM GREENE.
    From Chancery Court at Greeneville, November Term, 1870. H. C. Smith, Ch.
    McKee, for complainants, said:
    The first question which arises is, can the respondents urge the invalidity of the conveyance made by Kelly to Talmage of the timber growing on the land of the latter. It is insisted in behalf of the complainant that they cannot. The conveyance was never complained of by the intestate, nor is it now complained of by his personal representatives. The respondent purchased the laud with notice at law of' the sale of the timber, because, of its registration, it being settled by the adjudications of this country that the subject of the agreement .or contract executed by Kelly to Talmage is of a personal character. See Greenleaf’s Cruise on Real Property, vol. 1, side p. -45, sec. 9; 2 ed., top p. 44, side p. 55; same edition, top p. 62 and note; also, Greenl. on Ev., vol. 1, sec. 271; and Browne on Fraud, see. 255. And therefore the instrument was a proper one for registration under sub-sec. 1 of see. 2030 of the Code, and its registration, which was prior to respondent’s purchase of the land, was in law notice to the world. Though privies in blood or privies in representation of said Kelly might have complained of the agreement or conveyance of the timber, certainly the respondent, who purehased the land at a judicial sale, cannot so complain. The rule of caveat emptor applies to him, and he takes the land subject to all incumbrances of which he had actual or constructive notice: Sugden on Vendors, 2 American from 5 London edition, 221. Nor can the respondent insist that the agreement for sale of the timber should be set aside because of the imbecility of said Kelly, the right, to avoid it upon this ground being restricted to heirs or personal representatives alone upon the decease of Kelly: Fonblanque’s Equity, ch. 2, sec. 1, p. 63; 4th Amer. ed., side pp. 20-51. And, moreover, the respondent cannot complain of an alleged mistake of Kelly in signing an instrument which conveyed the wood on a greater extent of land than he designed to do, because it was fraudulently misread to him, for the reason that the respondent could not presume that the instrument, as registered and recorded, was for any reason defective or voidable.
    Secondly, it is insisted for complainant that even if respondent could properly ask that the instrument executed by Kelly for the sale of the timber be avoided, that the case would have required a cross-bill by the respondent, asking a rescission of the instrument. The answer does not even .purport to be a cross-bill; no bond was executed, upon its being filed, for costs, and no distinct, prayer contained in it for a recision, although its general intendment would seem to ask that relief, and without which specific relief; to the respondent of course the instrument must remain in full force. The very fact that the respondent cannot resist the claim of complainants if the instrument remains intact involves the necessity of annulling it, which would be a measure of relief to respondent which could only be granted upon the application of respondent formally by cross-bill, it being a relief which the scope of complainant’s bill does not afford the respondent. See Daniels’ Chan. Plead, and Prac., 3d English ed., p. 1650; Story’s Eq. PL, sec. 391; Adams’ Doctrines of Equity, 403, note.
    
      Thirdly, it is insisted for the complainant that the instrument in question is not void for want of sufficient description of the lands on which the timber was. The instrument was, according to its face, executed at “Kelly’s Gap, Greene county, State of .Tennessee,” in which county the instrument was registered and recorded, and in which the lands bought by respondent are situated; and moreover, the language of the instrument is, “all the timber on the land of the party of the first part,” which could have no other meaning than that which it plainly imports, namely, all the lands which the said Kelly then owned. See Jackson v. Delancey, 4 Cow., 427; 3 Haywood, side p. 243; Burrill on Assignments, 262.
    Fourthly, and lastly, it is insisted in behalf of complainant, that the proof does not show that there was either deceit practiced 'upon Kelly by misreading the article to him, or that his - mental condition wag such that he was incompetent to transact -business. The statement by one of the witnesses in behalf of respondent,' who professes to have heard the instrument read, is as follows: “As well as I recollect, it (the instrument) stated the timber on only a part of .the land, and that was 238 acres lying on the south side of the mountain.” This witness states that she is the wife of Samuel Kelly, who was a brother •of Joshua Kelly, the decedent; and the witness states also that she is residing on the lands bought by respondent at the sale of Joshua Kelly’s estate, and has been told by others that they did not believe respondent will ever turn her off. The only other witness of respondent who professes to have heard the instrument read, is Salina Miller, late Kelly, and. daughter of said Samuel, who states that she was. called in to witness said instrument after it had been signed, and, after she had signed as a witness, Tal-mage read it at her request, and as he read it to her 4he words “the timber on 238 acres” occurred where the instrument says “for all the timber.” The conversation detailed by this witness on the part of said Joshua immediately after the execution of the instrument, is objected to by the complainant, as is also the conversation of said- Joshua with the witness Ruble. The testimony of complainants’ witness Wilson is, that he was present at the time of the execution of the-instrument; that he had just read, before giving his. testimony, the instrument marked “exhibit S” to the-bill, and, as well as he remembers, it is a correct copy, and that every word of it was read to the said Joshua Kelly; that Joshua’s mind seemed to be sound and good; that the terms of the agreement were fully understood by the parties; that Joshua Kelly sat up all the time that he and Talmage were there; and further, this witness states the circumstance that Kelly, in the conversation at the time the instrument was signed, spoke of the coal timber he wanted cut lying north and east of his house, and also south of his house, and .also that Kelly’s house was situated on the north side of the Gap. No testimony from the attending physician is offered to show the state of Joshua’s mind, although one is shown to-have attended him. The witness Wilson states that the witness Miller was called in before the instrument was signed, but after it had been read , that she saw it signed, but does not know that the instrument was. read to said witness Miller. Witness Wilson^ also states that the terms of the agreement had been understood several months before the instrument was signed, and that the parties understood the agreement,, as he (witness) had theretofore paid Kelly money upon the contract.
    Furthermore, it is insisted in behalf of complainants, that this case of injunction is not such as that it should have been dissolved at all. The pleadings •show that the wood was bought for the use of complainants in the manufacture of iron at their works,, and the dissolution of the injunction restraining respondent from cutting and using the wood, is an injury which may be irreparable, taking into view the circumstances of distance from complainants’ works and the increasing value of the timber. See 3 Daniel’s Chancery PI. and Pr., 1775 and note.
    Complainant being called on for proof of its corporate existence, files a certified copy of the laws of the State of New York authorizing such corporations, and also the agreement of the corporations thereunder constituting themselves ■ a corporate body. Complainant also being called on for evidence of the assignment by Talmage to complainant, submits the power of attorney from Talmage to F. H. Potts to convey; and assign certain effects, among them the agreement of said Kelly to Talmage, and also the conveyance by said Potts, as such attorney, to complainant of the •effects authorized to be conveyed, and among them said agreement by Kelly.
    Reeve, for defendant:
    The bill alleges, that on the 6th of April, 1867, Joshua Kelly and A. A. Talmage entered into an article of agreement, or bond, by the terms of which Kelly sold to Talmage all the wood on his land, excepting choice rail timber and the large pine trees, for which Talmage was to pay ten cents per cord. A certified copy of the agreement is made an exhibit. Kelly’s lands consisted of several adjacent tracts in the vicinity of Kelly’s Gap, — being the same land that was sold by decree of the Chancery Court of Greene county, in 1869, to the respondent, who took possession of the same. Said Talmage transferred by assignment said interest to the complainant.
    The answer states that said agreement was only on the part of Talmage; that when the contract was entered into, Kelly was in articulo mortis, was not of a sound, disposing mind, was incapable of making a rational contract, and that said contract was fraudulent, etc.; also, that Talmage only bargained for that part of the timber growing on the land lying south of Kelly’s Gap, consisting of about 238 acres, and that the article was so read to Kelly before he signed it; that said article of agreement is- void on its face, because the said land is not described — giving neither boundaries, nor county, nor State.
    There are other questions in the case, but it is mainly to be determined — l, whether Kelly was in a condition to make a legal contract; 2, whether a fraud was perpetrated by misreading the instrument; 3, whether the instrument itself is void on its face, and whether the defenses are properly set up in the answer. The first two questions are fully answered in the affirmative by the depositions of Elizabeth Kelly and Salina L. Miller.
    As to whether the defenses set forth in the answer should have been made by cross-bill, there can be no question of the negative. The new matter it contains is merely in avoidance. The purpose of an answer is twofold — 1, to any facts upon which the plaintiff’s equity, as stated in the bill, arises; or, 2, to confess such facts, and avoid them by the introduction of some new matter from which contrary inferences may be drawn: 2 Dan. C. P. and P., 814. .To so much of the bill as it is necessary and material for the defendant to answer, he must speak directly and without evasion, and must not merely answer the several charges literally, but he must confess or traverse the substance of each charge: lb., 833; Story’s Eq. PL, secs. 852, 389, 394, 848, 851; see Code, secs. 4315, 4318, 4323.
    The agreement being void, cannot be explained by parol testimony: Green leaf on Ev., ubi supra, especially sec. 301, and note 1.
   FREEMAN, J.,

delivered the opinion of the court.

This bill is filed to enjoin defendants from cutting and using certain timber on lands formerly belonging to one Joshua Kelly. In April, 1867, Kelly, who then owned the land on which the timber stands, entered into a contract with A. D. Talmage, by which it is stated “the said Kelly hereby sells to the party of the second part, to-wit, the said Talmage, all the timber on the land of said Kelly, excepting the choice rail trees and large pine trees suitable for making timber, at the rate of ten cents per cord, to be paid for as fast as used.” Both parties bound themselves to the performance of this contract, with their heirs, administrators and assigns. This contract, it is alleged, was transferred and assigned by Talmage to complainant,' which fact is shown to be true.

Respondent answers, and claims that the land was purchased at a sale made by order of the Chancery Court, at the instance of the administrator of Joshua Kelly, and purchased by respondent with the understanding that Talmage had only purchased the timber on 238 acres south of the Gap. It is admitted that respondent had .notice of the contract we have above quoted. It is then insisted that Kelly, when he made the contract, was at the point of death, incompetent to make a contract, and that this was one obtained by fraud, in misnaming the instrument to him by Talmage — reading it as selling, or contracting to sell, the timber on 238 acres south of the Gap, instead of the timber on all his land.

We need not discuss or decide the question as to whether the purchaser of land, with notice of a previous conveyance, can avoid the conveyance because ■ it was obtained from his vendor by fraud. Suffice it to say, this is a question on which much doubt might be felt.

This, however, was a contract for the sale of personalty — that is, an agreement to sell the timber designated, but the property did not pass in the timber until it should be used or received by the purchaser- — at any rate, not till cut and corded up, as it. was to be paid for by the cord as used. See Hil-liard on Sales, p. 37, sec. 4, p. 43, sec. 8.

In the language of Park, J., in the case of Smith v. Surman, 9 B. & C., cited in note to Parsons on Cont., vol. 2, pp. 312-13, “the party could take no interest in the land by his contract, because he could not acquire any property in the trees till they were cut.” This being the nature of the ' contract — an agreement to sell personalty, to-wit, the timber growing on the land — if it is to be avoided, it probably should be by the administrator or personal representative, and not by the purchaser of the realty.

But passing from this, the party purchasing at a judicial sale of this character, would be in the position of an assignee, and stand in the shoes of the party under whom he claims as to the realty, taking it with all incumbrances upon it, not being an innocent purchaser; that is* he takes the land subject to-the stipulations of the contract of Kelly, in whose shoes he stands’. This contract, if valid and binding on Kelly, may well then be enforced and protected against interference as to the purchaser under the judicial sale. The contract of Kelly necessarily carried with it the right to enter upon the land for the purpose of cutting the wood, cording it, and taking it away for use: 2 Pars, on Cont., 47. The respondent purchaser, standing in the shoes of Kelly, cannot interfere with this right; and, purchasing with notice of its existence and terms, is bound by them. Any interference or destruction of the right of the party under this contract by the purchaser, would be an infraction of the contract between Kelly and Talmage, an intrusion upon the rights of another, which ought to be restrained by a court of equity on the. principle of good faith. If the purchaser at the judicial sale should be allowed to cut this timber and destroy it, it defeats and destroys the right of the purchaser from Kelly, who was prior in time, and therefore prior in right.

We may say, as to the allegations of fraud on the part of Talmage in obtaining the contract, and incapacity on the part of Kelly in making the contract, the proof fails to make out such a case; at most, it raises a suspicion, but is not enough to overturn a written contract duly entered into.

It is insisted in argument that. the contract is too indefinite and uncertain — not specifying any particular land, but selling the timber on all the land owned by the said Kelly. The rulé in such cases is, that the court may put themselves in the place of the parties, and then see how the terms of the instrument affect the property or the subject matter. With this view, evidence must be admissible of all the circumstances surrounding the parties to the instrument. See Greenl. Ev., vol. —, sec. 287; Add. on Cont., 847. The facts of the case, as shown at the time, were, that Kelly owned 714 acres of land in Greene county. This land was valued mainly for its timber. The party purchasing it contemplated, or was engaged in the iron business, and wanted timber for his furnaces. No other land is shown to have been owned by Kelly, and it is evident no other land was- referred to except this body of land. Under these circumstances, we think the land on which the timber was sold is sufficiently identified; in fact, this is admitted by answer of respondent. The rule would be different .where the contract, under the statutes of frauds, is required to be in writing, or, at any rate, would have less extensive application, • as in such cases the terms of the contract must be found entire in the contract itself as to stipulations and subject matter.

The result is, the decree of the Chancellor must be reversed, and decree entered here for complainant.  