LOWERY v. WILLIAMS

Dulaney Jaquess, for appellants.

The timber deed involved in this cause is set out in the court's opinion. We deem it necessary to consider the meaning of the term "merchantable timber" in order to arrive at a correct determination of this cause. See 2 Bouvier's Law Dictionary, Rowles Third Revision, p. 2196; Butler Barrow v. McPherson Bros., 49 So. 257. See, also 19 Ann. Cas. 1051 and note.

The whole case of the appellee rests upon a determination of the meaning of the words "standing and being" as used in this contract. It is certain to our minds that if the contract described only such timber as was "standing" on the lands, that any timber which may have been lying in a fallen state would not have been conveyed. It is also certain that if the contract had only described the timber "being" upon the lands, that the contract would have conveyed all timber regardless of its state. The word "and" in this contract is a co-ordinate conjunction. It is not explanatory but signifies and expresses the relation of addition.

The word "standing" is a word of limitation and the word "being" is a word of general import and we submit that the correct construction of the three words as used in this contract is that when the two words "and being" were added to the word of limitation, that the contract was thereby enlarged to include all merchantable timber measuring eighteen inches and up in diameter which was upon the lands of the appellee on July 11, 1923.

The participle "standing" as used in this timber deed, includes some of the meaning of the participle "being;" and when the participle "being" was added thereto by the use of the co-ordinate conjunction "and," the only reasonable conclusion is that the grantor used these three words in the commonly accepted usage, thus: to convey by the deed all the timber which was "standing" "and" all timber which was "being" on the lands.

That the recitals of a deed are to be more strongly construed against the grantor is so well established in Mississippi that we deem it unnecessary to cite more than one authority on this point. Soria v. Harrison County, 50 So. 443. See, also, 8 R.C.L., sec. 104, p. 1051.

There is nothing therein which reserves to the grantor any timber which might be lying upon the land. The grantor in the contract fully warrants the title thereto under the terms and conditions of the contract and expressly provides that all timber not cut and removed from the land by December 1, 1924, shall revert to and become the property of the grantor.

If the deed be deemed ambiguous, the court erred in excluding parol evidence which showed its meaning. Unless the deed be construed as conveying the fallen timber, no effect is given the words "and being." On the other hand, learned counsel for appellee will doubtless argue that unless the deed be construed as conveying only standing timber, no effect is given the word "standing." If the court should be inclined towards this view, it follows that the deed is ambiguous and resort to parol testimony was proper, not to vary or add to the terms of the contract, but for the purpose of explaining its meaning. Shapleigh v. Spiro, 106 So. 209; 6 R.C.L. 839; 18 Ann. Cas. 257 and note.

J.F. Dean, for appellee.

Williams conveyed all the merchantable timber "standing and being" on the described land. Appellant proceeded under their contract to cut and haul from the said land all the merchantable timber both standing and already down. Appellee contended that he had reserved the "down" timber and that his contract with May Brothers was for standing timber only. To settle the controversy appellee sued in the justice court for the value of the "down" timber removed from said land by appellants. The justice of the peace found no ambiguity in the language of the contract, held that the contract spoke for itself and meant standing timber only and gave judgment for the value of the "down" timber removed by appellants.

The circuit judge agreed with the justice of the peace that the contract was in writing, that it was not ambiguous, that it needed no explanations and could not be varied by parol; and gave a peremptory instruction to find for appellee.

"And" is a copulative conjunction, joining — or adding — co-ordinate words or phrases. Co-ordinate, of course, means of equal importance. The words "standing and being" then may be reversed and will mean just the same, either may precede the other without change of meaning. Now reverse the words and we have "being and standing." Now both must concur; the timber must not only be on the land but it must be standing on the land and this was what the court rightly found.

The court observed that the phrase "standing and being" was really a stereotyped phrase and meant standing timber, like the phrase, so frequently used in deeds, "lying and being" in a certain county, that the word "being" was really surplusage, that standing on the land necessarily meant being on the land, but being on the land did not necessarily mean standing on the land; and that the contract could and did mean but one thing and that was that it conveyed the standing timber only.

The court will find a full discussion of the meaning and construction of the word "and" in 2 C.J. 1337.

The judgment should be affirmed.

Argued orally by C.A. Jaquess, for appellants.