
    CAMMACK v. R-L LUMBER CO. et al. 
    
    (No. 1031.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 23, 1924.
    Rehearing Denied Feb. 6, 1924.)
    1. Contracts @=»I47(I) — Construed according to the intent of the parties.
    The general rule in construing contracts is to give effect to the intent of the parties.
    2. Logs and logging ⅞&3(9) — Timber deed providing that timber remaining after land shall have been “cut over” shall revert to grantor construed.
    Under timber deed conveying the merchantable timber, upon certain land, giving grantees 8 years in which to cut and remove the timber, and providing “that, if said land should be cut over and timber removed therefrom at any time before the expiration of said 8 years ⅜ ⅜ * all the timber remaining on said land shall revert back to” grantor, and that “this contract shall cease to operate and be of no force whatever,” grantees were not required to cut the different kinds of merchantable timber at one continuous cutting, and removal of merchantable timber of a certain kind, did not terminate grantees’ rights during the 8 years to cut and to remove merchantable timber of other kinds, but merely prevented a second cutting of the same kind of timber. ■
    3. Logs and logging <§=»3(7) — Ambiguous timber deed construed most favorably to grantee.
    In a case of ambiguity in a timber deed, the construction most favorable to the grantefe must prevail.
    
      4. Contracts <@=>318 — Forfeitures not favored.
    Forfeitures are not favored, and if the language used by the parties in contracting is fairly susceptible of an interpretation which will prevent a forfeiture, it will be so construed.
    Appeal from District Court, Tyler County ; J. M. Combs, Judge.
    Suit by T. J. Cammack against the R-L Lumber Company and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Coleman & Lowe, of Woodville, for appellant.
    Mooney & Smith and J. E. Wheat, all of Woodville, and Robt. A. Shivers, of Port Arthur, for appellees.
    
      
      Writ ot error refused April 9, 1924.
    
   O’QUINN, J.

Suit by T. J. Cammack against the R-L Lumber Company in trespass to try title, and for damages to 270 acres of land situated in Tyler county, Tex., and for injunction, restraining defendant from cutting qnd removing any timber from said land.

The defendant R-L Lumber Company answered by general demurrer, special exception, and general denial, and disclaimed any right in the land except as to the timber thereon, of which timber it alleged ownership by virtue of a timber deed executed by T. J. Cammack and wife to J. H. Riley and W. T. Flowers, and which defendant alleged passed by mesne conveyances’to it, and im-pleaded J. H. Riley on his warranty to said defendant to the title to said timber.

Riley answered by general demurrer, general denial, and specially that on May 10, 1920, T. J. Cammack and his wife conveyed to him and W. T. Flowers, for a consideration of $3,000 cash, all the merchantable timber on said land, both pine .and hardwood, and that he (Riley) had purchased the interest of said Flowers and conveyed same to appellee, R-L Lumber Company, and prayed for relief generally.

The case was tried to a jury, and, when the evidence was closed, the court was requested by both plaintiff and defendant to peremptorily instruct the jury in their favor. The plaintiff’s motion was denied, but the court instructed the jury to find for the defendants, which they did, and upon which verdict judgment was rendered for the defendant R-L Lumber Company for the timber in question. Motion for a new trial being overruled, plaintiff appealed.

The deed from T. J. Cammack and wife, conveying the timber to Riley and Flowers, is as follows:

“The State of Texas, County of Tyler.
“Know all men by these presents: That we, T. J. Cammack and M. E. Cammack, of the county of Tyler, state of Texas, for and in consideration of the sum of three thousand dollars to us paid by J. H. Riley and W. T. Flowers, -the receipt of which is hereby fully acknowledged, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said J. H. Riley and W. T. Flowers of the county of Tyler, state of Texas, the merchantable timber both hardwood and pine, standing, lying and growing upon the following described tract of land in Tyler county, Texas, about 270 acres, more or less, part of the C. J. Horton 320-acre survey and for a more particular description of said timber reference is hereby made to the patent of said Horton .survey, hereby granting to said J. H. Riley and W. T. Flowers and their assigns, the rights of ingress and egress for the purposes of cutting and removing said timber, with teams, wagons, or in every other way they may see fit or necessary for removing said timber, and it is understood and agreed that should it be necessary the said J. H. Riley and W. T. Flowers shall have eight years to cut and remove said timber from said land, provided, however, that if said land should be cut over and timber removed therefrom at any time before the expiration of said eight years, then in that event all the timber remaining on said land shall revert back to me, the said T. J. Cammack, and this contract shall cease to operate and be of no force whatever.
“And it is further agreed and understood by the parties here that, in cutting and removing said timber from said land, no land that is in cultivation shall be run over by teams, wagons, or any other implements that may be used in cutting or removing said timber.
“To have and to hold the above-described timber, together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said J. H. Riley and W. T. Flowers, their heirs and assigns forever, and we do hereby bind ourselves, our heirs, executors and administrators, to warrant and forever defend, all and singular the said timber unto the said J. H. Riley and W. T. Flowers, their heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.
“Witness our hands at Colmesneil, this 10th day of May, A. D. 1920.
“O. J. Cammack.
“M. E. Cammack.”

May 20, 1920, Flowers and Riley sold the merchantable oak timber on said land to L. Knouse, the conveyance stipulating that Knouse should have two years in which to remove said timber, and that, if the land be cut over and said timber removed therefrom at any time before the expiration of two years, all timber remaining on said land should revert to said Flowers and Riley. Knouse, under his conveyance from Flowers ■and Riley, cut the oak timber" on said land suitable for stave purposes, 18 inches in diameter and up. Flowers then conveyed his interest in the timber purchased by him and Riley from Cammack to Riley, and Riley conveyed all the timber, both pine and hardwood, then on said land to defendant R-L Lumber Company. The timber consisted mainly of pine, oak, asli, gum, kickory, and cypress. Tke lumber company began cutting tke timber, and this suit was brought by plaintiff and an injunction granted stopping tke cutting of the timber until final trial in tke district court. Tke timber would have been cut and removed within about six weeks if tke defendant lumber company had not been stopped by tke injunction.

Tke only question in tke case is tke construction of tke timber deed from Cammack and wife to Riley and Flowers. Cammack contends that ■ tke provision in tke deed that—

“If said land should be cut over and timber removed therefrom at any time before the expiration of said eight years then in that event all the timber remaining on said land should revert back to me, the said T. J. Cammáck, and this contract shall cease to operate and be of no force whatever,”

—should be given a literal interpretation to tke effect that, if at any time within tke eight years any timber has been cut and removed from .the land, said cutting exhausted tke rights of tke holder of tke timber conveyance, and that all timber left on said land reverted to him (Cammack). This is manifest from tke following proposition of appellant:

“When timber is sold and a time limit fixed for its removal, and a provision made to the effect that when the land is cut over and timber is removed therefrom, that all the timber left shall revert to the grantor, the purchaser or his assigns shall have the right! to enter only one time and must take all the timber he gets at one continuous operation; and the effect of a failure to get all of the timber at one continuous operation is to work a forfeiture of his right to the timber not taken during the time the land is being cut over.”

Under this proposition, appellant insists that as tke oak stave timber was situated on practically every acre of tke land, and as it has been “cut over” for tke purpose of removing said oak stave timber, that said cutting exhausted all right conveyed by the timber deed to enter upon tke land and cut and remove timber, and that tke land cannot, under tke contract, be again entered upon to cut and remove any other timber, but that all of tke timber left upon tke land when cutting tke oak stave timber ceased reverted to appellant.

Tke general rule in construing contracts is to give effect to tke intent of tke parties. We think it plain that appellant sold and intended for tke purchaser to have all the merchantable timber — pine, ask, gum, oak, kickory, and cypress — situated on tke land, and tke purchaser or kis assigns should have eight years, if necessary, in which to cut and remove said timber, and that the clause in tke contract providing that “if said land should be cut over and timber removed therefrom at any time before tke expiration of said eight years, then in that event all tke timber remaining on said land shall revert back to me, and this contract shall cease to operate and be of no force whatsoever,” was intended to prevent tke purchaser from going on the land and cutting tke timber and then holding tke timber rights for a number of years, and before tke expiration of tke time limit going back and again cutting all timber that had grown to be merchantable; in other words, that tke cutting of tke timber- sold, tke merchantable pine and hardwood, would prevent a second cutting, years afterward. We do not think tke words “cut over” meant that when one kind of timber only was cut, unless all tke other kinds of timber were cut at tke same time, that the right to cut same within tke time limit named in tke contract was lost, but that when tke timber sold — pine and hardwood — was cut and removed, then tke land would be “cut over,” and tke right exhausted. Brooks v. Moss (Tex. Civ. App.) 175 S. W. 793.

In tke ease 'cited, in construing a clause in a contract similar to tke one in question, tke court said:

“In other words, it was intended by tke grantor that, should the grantee remove the timber within a shorter period than that provided, to preclude him from re-entering upon the land to remove timber wliich previously had not been of suitable size- for manufacture into lumber, but which, before the expiration of the longest time fixed by the deed, had grown to-such size.”

Tke contract does not provide that all tke timber sold should be cut at one continuous cutting, nor that, when one kind of timber was cut, unless all tke other kinds were cut at tke same time, they could not be cut afterwards. It is without dispute that no pine nor ask nor gum nor kickory nor cypress was cut, and yet all of these that were merchantable were sold, and appellant received tke cask therefor. That interpretation of contracts should be given as will carry out the intention of tke parties, and if it be that tke clause under consideration is of doubtful meaning, or is susceptible of being construed either as contended by appellant or by appellee, in suck case tke construction most favorable to the grantee must be given. We do not think it clear and certain that tke parties intended that if any timber should be cut and removed before tke expiration of the time limit, or that if just one kind of tke merchantable timber sold should be cut and removed, that all of tke other kinds of timber sold remaining upon tke land, although tke time limit for removal had not expired, was forfeited under tke contract. In suck case tke rule is well settled that tke doubt should be resolved in favor of tke grantee.

This is not a suit to restrain appellee from cutting tire'timber because of the lapse of the time given in which, to cut and remove it, but is a suit to enforce a claimed forfeiture under the contract of sale. Forfeitures are harsh and not favored by the law, and, if the language used by the parties in contracting is fairly susceptible of an interpretation-which will prevent a forfeiture, it will be so construed.

We do not think that the contention of appellant finds support in the record, and therefore the judgment is affirmed. 
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