lowing facts: On one side of the triangle lay Brown street, on another side Houston street, and on the remaining side, the front of the lot, was the roadway of the railroad company. This roadway abutted upon the lot in the form of an embankment thrown up along the entire length of its frontage; said embankment extending 50 feet westward from the center of the track. This embankment was elevated above the lot in question one foot in height, and was plainly noticeable. The effect of this configuration was a triangular piece of ground distinctly lower than the railway land, and bounded on one side by the railway embankment just referred to and on the other two sides by the two streets.

The foregoing lot was the property which the vendee intended to buy and which the vendors intended to sell, and it was, in fact, bought and sold.

The deed, however, gave the length of the line on Brown street as 315 feet, and on Houston street as 512 feet. In fact, however, a survey which the vendee caused to be made after he had received his conveyance demonstrated that the line of the triangle above described, running along Brown street, was only 279 feet, instead of 315 feet, and the line on Houston street was 443 feet, instead of 512 feet, and the line along the railroad was only 52.4 feet, instead of 60 feet; the latter being the distance of frontage which the lot would have had on the railway if the other two dimensions had actually existed as stated in the deed.

Before consummating the purchase, the vendee had furnished him an abstract of title. Several of the deeds gave the dimensions of the lot as to the length of the lines with the same definiteness exhibited in the deed above copied. One of them, however, the earliest deed in the chain of title, gave the distances as about 315 feet on Brown street and about 512 feet on Houston street. This deed also contained a diagram of the lot and the adjoining streets, which showed plainly that the line on Houston street could not be more than about 440 or 445 feet.

However, the Court of Chancery Appeals have found that, notwithstanding the information conveyed to the vendee by the abovementioned deed and by his own occular examination of the area of the lot, he believed that the lines were of the lengths, respectively, above indicated.

So the substance of the finding of facts by the Court of Chancery Appeals, binding on this court, is that the vendee obtained by the conveyance the very lot which he intended to buy and which the vendors intended to sell, and that this purchase was made after an actual inspection of the property, but he believed that the deed stated the length of the lines correctly.

The Court of Chancery Appeals also found as a fact that the Nashville, Chattanooga

& St. Louis Railway Company were in the actual adverse possession of the strip of land now in controversy when the vendee made his inspection, and when the deed was made, and had been in such possession for more than seven years.

The Court of Chancery Appeals finds that there are 18,842 square feet less area in the lot conveyed than there would be in a lot running 315 feet on Brown street and 512 feet on Houston street. That court estimated that on the basis of square feet the property at the contract price expressed in the face of the deed was worth 6% cents per square foot. They accordingly rendered a decree in favor of the complainant for $1,168.20 as shortage on the land.

The bill was filed to recover on the covenants of the deed. This pleading, after stating complainant's version of the facts, proceeds:

"Complainant is advised that he has the right to elect whether he will sue for a rescission of said contract or retain so much of the property to which the title is clear and sue his vendors on the covenants in their deed for the property conveyed, and to which they had no title that was free and unincumbered, and complainant elects to pursue the latter course, and retain so much of said lot that was owned by vendors and conveyed to him by their deed, and seek a recovery against them for the value of the property conveyed, and to which they did not have a free and unincumbered title."

After the survey was made by the vendee and the lines were discovered to be not so long as stated in the deed, and before the filing of the bill, the vendors offered to rescind the transaction and return to the vendee the whole consideration paid, consisting of cash and notes and some real estate that had been conveyed to them by the vendee. He declined, however, to accept the rescission, and elected to stand upon what he deemed to be his strict legal rights, and filed the bill as above stated.

An appeal having been prayed from the decree of the Court of Chancery Appeals to this court, the question to be determined is whether the decree of that court was correct in view of the pleadings and the facts found.

Our cases establish the following principles upon the general subject to which the present controversy belongs: Where land is sold by the acre, it is a matter of course to grant relief for either an excess or a deficiency; and, in determining whether the sale was by the acre, the deed will not control, but the parties may go behind it and prove the contract of which the deed was intended by the parties as an expression. Where the sale is in gross, the rule is that no compensation will be granted for either an excess or a deficiency; but this is subject to the following exceptions: If the deed recite the number of acres, and it subse

quently turn out upon survey, or be otherwise accurately ascertained, that there is an excess or deficiency, over or under the acreage stated, so great as to justify an inference of fraud, or of a mistake equivalent in its effect to fraud, relief will be granted. If, however, the vendee has inspected the land, and has obtained the very tract he intended to buy and all the vendor intended to sell, he can have no relief, although the deed purport to state the number of acres, unless the difference between the number stated and the actual number of acres contained be so great as to shock the conscience of the court. Relief will then be granted on the ground of fraud. If the shortage arise from the fact that a portion of the land embraced in the boundaries of the deed is held by a better title, relief may be had, as of course, upon the covenant of seisin, or, if there has been an eviction, then upon the covenant of warranty of title, or the vendee may have a total rescission if the loss be material, or, if he choose, he may have a partial rescission, retaining that to which the title is good, and receiving compensation for the rest on the basis of the proportion which the part lost bears to the whole purchase. But if a part of the land purporting to be conveyed by the deed be held in adverse possession at the time of the conveyance, and the vendee have knowledge of such adverse possession at the time he takes his conveyance, he can have no relief, either upon his covenants at law or in any form in equity; otherwise, if he have no knowledge of such adverse possession at the time. For support and for illustration of these principles, see the following authorities: Allison v. Allison, 1 Yerg. 16; Hendrick's Heirs v. Mosely, 3 Yerg. 74; Meek v. Bearden, 5 Yerg. 467; Neal v. Allison, 1 Tenn. Cas. 147; Horn v. Denton, 2 Sneed, 125; Miller v. Bentley, 5 Sneed, 674; Barnes v. Gregory, 1 Head, 230, 237; Bradley v. Dibbrell, 3 Heisk. 522; Williams v. Bradley, 7 Heisk. 54; Adams v. Brown, 4 Baxt. 124, 133; Shields v. Thompson, 4 Baxt. 227, 230; Blakemore v. Kimmons, 8 Baxt. 470, 473; Witherspoon v. Porter, 1 Tenn. Cas. 666; Hillis v. Martin, 2 Tenn. Cas. 273, 275; Myers V. Lindsay, 5 Lea, 331, 333, 334; Moses v. Wallace, 7 Lea, 413, 416, 417, 419; Deakins v. Alley, 9 Lea, 494, 497; State, for Use, etc., v. Keller, 11 Lea, 399, 403; Waters v. Hutton, 85 Tenn. 109, 1 S. W. 787; Bigham v. Madison, 103 Tenn. 358, 52 S. W. 1074, 47 L. R. A. 267; Foster v. Bradford, 1 Tenn. Ch. 400, 403; Haynie v. American Trust Inv. Co. (Tenn. Ch. App.) 39 S. W. 861; Perry v. Williamson (Tenn. Ch. App.) 47 S. W. 189; Collins v. Smith, 1 Head, 251.

Other rules laid down are that the mere recital in the deed of the number of acres which it purports to convey does not amount to a warranty that the tract contains so many acres. Allison v. Allison, supra;

Witherspoon v. Porter, 1 Tenn. Cas. 666. Generally both the statement of the number of acres and the recital of the metes and bounds are treated merely as matters of description (Allison v. Allison, supra); and where there is a conflict between the calls or lines set out in the deed, and the bounds by natural objects or other monuments referred to therein, and the vendee goes upon the land and inspects it before buying, he will not be heard to say that he was deceived, when the bounds are such and so obvious that any error in the lines would be perceived from the bounds and would be corrected in the mind upon observation (Meek v. Bearden, 5 Yerg. 467, 474); and generally marked lines or natural boundaries will control either the course or distance called for or both. Blount's Lessee v. Medlin, 2 Overt. 199; Massengill v. Boyles, 4 Humph. 205; Moses v. Larens, 2 Tenn. Cas. 38; Lewis v. Oakley, 10 Heisk. 483; Disney v. Coal Creek Mining & Mfg. Co., 11 Lea, 607, 611, 612.

Where the deed contains the equivalent of an express convention that the tract conveyed contains a given number of acres, this will be treated as a warranty. Hall v. McCammon (Tenn. Ch. App.) 37 S. W. 1027.

Applying the foregoing principles to the case in hand, the solution is not difficult.

The sale was in gross. The deed contains no covenant as to quantity, nor even any recital or mere statement of quantity. Hence there is no room for a claim of deficiency of quantity, either on the ground of express contract or on the ground of fraud. If it could be properly held that the statement of definite calls should, in view of the fact that a calculation would disclose the amount of land purporting to be contained therein, be treated as a representation of quantity within the authorities above referred to, a question which it is not necessary to now decide, still such rule would not apply to the present case, because the bounds recited in the deed as inclosing the land, the two streets and the railroad land, took precedence of and corrected the calls for distance, so that the vendee could make no just claim that he was deceived as to the extent of the property he was buying.

Again, treating the case really presented in the bill, an action on the covenants of the deed, upon the ground that a part of the land embraced within the calls was at the time of the conveyance held by an outstanding and better title, that of the railroad company, two insuperable objections are apparent: Firstly, as already said, the representation by bounds would control that made by the calls for distance, and it follows that none of the land described was held by better title, and that the complainant obtained all that he contracted for; secondly, assuming that the strip claimed in the bill really fell within all the descriptive words of the deed, still

the complainant could not recover, because that strip was, when the conveyance was taken, then in the adverse possession of the railroad company in a manner open and obvious to the complainant, and under such circumstances he could assert no rights either at law or in equity in respect thereof based upon the deed in question.

It is insisted that the cases we have cited concerning the correction by monuments of calls for course and distance are applicable only in actions brought for the recovery of the possession of land, and that they have no bearing upon a controversy of the kind we have before us. To say nothing of the application of the same principle in Meek v. Bearden, 5 Yerg., at page 474, we see no reason why it should not apply, since in either case the underlying reason is in substance the same. The facts of the present case furnish a graphic illustration of the propriety and justice of such application; the exact limits of the land bought and sold being as apparent to the eye of an observer as are the dimensions of a box or a table.

In

It is insisted that the case of Bigham v. Madison, supra, fully sustains complainants contention. This is an erroneous view. that case the deed purported to pass title to 25 acres of land which it described. The location of the supposed lines was pointed out; but both the vendor and the vendee were mistaken as to the true location. It subsequently developed that one-half of the land covered by the calls was held by a superior title. It did not appear that there was any adverse possession of any part of the land at the time the conveyance was executed. either known to the vendee or existing in fact. It turned out that the vendee did not obtain the land he intended to buy and which the vendor intended to sell. Upon this state of facts the vendee was rightly granted a rescission. That was a very different case from the one now before the court.

For the reasons stated, we are constrained to reverse the decree of the Court of Chancery Appeals, and dismiss the bill.

CARSON v. THREE STATES LUMBER

CO.

(Supreme Court of Tennessee. April Term, 1902.)

1. LOGS AND LOGGING-SALE OF STANDING TIMBER-REMOVAL-TIME.

Where, on a sale of standing timber, no time is specified for the removal thereof by the vendees, they are entitled to a reasonable time within which to remove it.

[Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Logs and Logging, § 9.] 2. SAME.

Where no time is specified for the removal by vendees of standing timber sold them, the condition of the land whereon the trees standing, its accessibility, whether overflowed land or not, and, if overflowed, the effect of an overflow

in hindering or aiding the grantees in removing the timber when cut, the number of trees standing at the time of the contract, and the facilities under the contract of the grantees for cutting and removing the timber, are to be considered in determining what is a reasonable time for such removal.

3. SAME EVIDENCE.

Complainants, in February, 1893, sold to defendant's assignor all the cottonwood trees on 1,000 acres of land, and in July 1894, sold to the same grantees all timber growing on the remainder of the tract; in the latter conveyance authorizing the vendee to cut the timber on the 1,000 acres. A great part of the land was low and swampy and subject to overflow, and at the time of the sale and until 1896 the vendees looked alone to periodical overflows to flood out the logs they cut; floating logs in an overflow being then regarded as the only feasible plan in getting them to market. There was testimony of witnesses having long experience in such work that a reasonable time for removing the timber was from 6 to 13 years. It also appeared that in 1898 a steam railroad was being constructed into the body of the timber for defendants. Held, that a period of 10 years from the 1st of November, 1893, was a reasonable period.

Appeal from Chancery Court, Lake County; Jno. S. Cooper, Chancellor.

Bill by S. B. Carson and another against the Three States Lumber Company. Decree for complainants, and defendant appeals. Bill dismissed.

W. A. Percy, for appellant. Blair Pierson, for appellee Carson,

BEARD, J. The complainants are the owners of a tract of timbered and overflowed land lying in Lake county, in this state. In February, 1893, they sold and conveyed to Hull & Polhemus, their heirs and assigns, all of the cottonwood trees on 1,000 acres of this tract. In July, 1894, the same grantors sold and conveyed to the same grantees all the timber growing on the remainder of the tract, and in the same conveyance authorized Hull & Polhemus to cut the timber on the 1,000 acres. In other words, by the two conveyances the grantees were vested with the right and title to all trees of every kind on the entire tract.

These conveyances were made for a valuable consideration, a part of which was evidenced by notes which the grantors had sought to secure by retaining a lien in the face of their deed on the trees sold. In February, 1896, these purchase-money notes were paid off, and thereupon complainants executed a quitclaim deed to Hull & Polhemus, in which they release their liens and confirm their title to the timber theretofore conveyed in these words: "And in consideration of the same [that is, the payment of the notes] we convey and confirm to the said Hull & Polhemus all the timber rights, licenses, and privileges in the land mentioned in said deed, to their heirs and assigns forever." On the succeeding day to the execution of this quitclaim deed, Hull & Polhemus conveyed all the trees on this land to Fitshugh, and in

April, 1896, Fitshugh, for a large consideration, sold and conveyed the same property to the Three States Lumber Company, which was the owner, and as such was proceeding to get the timber off the land, when the present bill was filed on May 11, 1901.

The deed to Hull & Polhemus, while conveying and confirming the title to the timber to them, their heirs and assigns forever, fixed no time for its removal, and the theory of the present bill is that they and their vendees had only a reasonable time to accomplish this, and that such a period having already elapsed, the defendant company had lost all rights to the standing timber, or to enter upon the land of complainants to cut and remove it. In other words, the complainants' construction of the deed conveying the timber is that the grantees and their assigns took title to only such as they should cut and remove within a reasonable time. On the contrary, the insistence of the defendant corporation is that no time was limited or fixed in the deed from the grantors for the removal of the timber, that it has unlimited time, and, if mistaken in this, that at least, under all the conditions existing, a reasonable period had not elapsed when it was interfered with by the injunction issued in this cause.

The chancellor adopted the first instance of the complainants, and decreed that upon a proper construction of the deeds to Hull & Polhemus, they, and those claiming under them, only took title to the timber on the land provided it was removed within a reasonable time, and such a period having elapsed, that the Three States Lumber Company had no title to any still standing, and no right to enter upon the land for the purpose of cutting or removing any of such timber. Error is assigned upon this holding.

That a grant of standing trees implies, if no more, at least a right of access to it, and the use of the land for the purpose of severance, and afterwards removing the logs or manufactured timber, was settled as early as the often cited case of Reniges v. Fogassa, Plowden, 16. This rests upon the doctrine that every grant carries with it whatever is essential to the use and enjoyment of the subject of the grant. 2 Par, on Con. 534. The presumption of the law is that this was in the contemplation of the parties, when the grant was made. Trees standing upon the land of the grantor could be of no value to the grantee, without the right of severance and removal. To him their one worth consists in being cut down and removed; and this can alone be accomplished by permitting the grantee to enter upon the lands where they are standing. The parties may, and usually do, fix the time for the enjoyment of this right, but if they do not, then what time does the law allow? Is it a period of unlimited or indefinite duration, or is it one that is reasonable under all the circumstances of the particular case?

If it be, as is insisted by the Three States Lumber Company, that it can remove the timber in question at its own convenience, without regard to the will of the complainants, or the lapse of time, it has, so far as the standing timber may interfere with the use of the soil by its owner, practically ousted him from its control and enjoyment, without having in terms contracted for such extensive rights. It, claiming under the original grantees, purchased timber and the right to cut and remove it, and not land, and yet, upon its contention that no limit has been fixed in the grant, it has the right to the use of the soil for the sustenance of the standing trees, and the land as a depository for the cut, and their removal, forever, if it so pleases.

Then the grantors, in selling timber, have unwittingly parted with the control, if not a large part of the ownership, of this land. To concede such a contention would be in the face of the natural presumption of what was the intention of the parties to the contract, and also of a well-established rule of law, which is applied to contracts as to other matters, and upon sound reason should have universal application, which is that where anything is to be done, as goods to be delivered or the like, and no time is specified in the contract, the law presumes that the parties intend that the thing should be done in a reasonable time. 5 Lawson's Rights & Rem. 4133; 2 Parsons' Cont. 535.

And, as might well be anticipated, this rule has been extended to contracts for standing trees (Boults v. Mitchell, 15 Pa. 371; Irons v. Webb, 41 N. J. Law, 203, 32 Am. Rep. 193; Hoit v. Stratton Mills, 54 N. H. 109, 20 Am. Rep 119; Boisaubin v. Reed, *41 N. Y. 323), and what is reasonable time of performance of such contracts, ordinarily, is a mixed question of law and fact. In determining the question in such a case, the condition of the land on which the trees are standing, its accessibility, whether overflowed land or not, and if overflowed, the effect of an overflow in hindering or aiding the grantee in removing the timber when cut, the number of trees standing at the time of the contract, and the facilities under the contract of the grantees for cutting and removing the timber. When the conditions are ascertained, the law will then say whether the grantee has exercised reasonable diligence under his contract.

This does not involve, and therefore it is unnecessary for us to rule, the vexed question argued with ingenuity, and after much research by the counsel for the complainant and the defendant as to what becomes of the title to the remaining trees, after a reasonable time has elapsed for their removal, in open contracts like those with which we are now dealing. For under such contracts, after the expiration of such period, the same question would be presented as with trees

remaining after the lapse of a fixed period, in contracts containing a limitation as to time. For the first class of contracts the law does for the parties what they have done for themselves in the other class. There are cases which hold that the title remains in the grantee after the time of limitation has passed, though without legal right on his part, to enter within the close of the grantor. Hoit v. Stratton Mills, supra; Irons v. Webb, supra. There are others which simply announce that mere lapse of time does not affect the title of the grantee, his right of entry not being involved in litigation. Goodwin V. Hubbard, 47 Me. 595; Haskin v. Record, 32 Vt. 575; Magnetic Ore Co. v. Marbury Lumber Co., 104 Ala. 465, 16 South. 632, 27 L. R. A. 434, 53 Am. St. Rep. 73.

On the other hand, there are cases holding that the title of the grantee terminates with his right of entry (Saltonstall v. Little, 90 Pa. 422, 35 Am. Rep. 683; Golden v. Glock, 57 Wis. 118, 15 N. W. 12, 46 Am. Rep. 32; Boisaubin v. Reed, supra; and in Macomber v. Detroit Lansing, etc., Railroad Co. (Mich. 1896) 66 N. W. 376, 32 L. R. A. 102, 62 Am. St. Rep. 713), and it is said that the weight of authority is that timber uncut at the expiration of the time for removal reverts to the landowner.

Leaving open this question, it is sufficient to say that as we are satisfied, after a careful examination of all the evidence in the record, a reasonable time within which the grantee and their assigns could remove the timber covered by the contract, had not expired when the present bill was filed.

It is estimated that in 1893 there was standing on the land from 16,000,000 to 18,000,000 feet of timber. The land, or the greater part of it, was low and swampy, and subject to overflow from the Mississippi river. At the time of the making of the contract, and until their sale, in 1896, to Fitshugh, Hull &

Polhemus looked alone to periodic overflows to float out the logs they cut. In the winter of 1893-94, they succeeded in getting out about 1,000,000 of feet, and in anticipation of having another overflow they had cut additionally 2,000,000 or 3,000,000 feet, but were not able to get it out on account of its failure. Mr. Hull says that this timber was lost to his firm, and lying on the ground, worm-eaten, and worthless when they made their sale in 1896. The evidence shows that to haul this timber to the Mississippi river would have entailed a heavy loss to these parties, and, at the time they were operating, floating logs in an overflow was regarded as the only feasible plan of getting them to market. Since then, teamways and steel roads, for the purpose, have come into use. In 1898, the Three States Lumber Company contracted with their codefendant, Peck, to erect a sawmill near the land, and cut the trees remaining on it, and convert them into lumber, and that when this bill was filed, he was constructing a steam railroad into the body of this timber, and had entered his mill, and was actively engaged in fulfilling his contract.

Many witnesses who qualify as persons having long and large experience in such work, and their estimates of a reasonable time for removing timber under this contract, was from 6 to 13 years. After weighing all the testimony, we have concluded that a period of 10 years, from the 1st of November, 1893-this date being midway between the two deeds-is, in view of all the conditions developed in the evidence in existence or likely to exist, a reasonable period. There, however, will be excluded from this time, the time which has been lost to the defendants by reason of the pendency of the injunction in this

case.

This bill is therefore dismissed, at cost of complainants.