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Walter BUFORD v. Jim ALDERSON and Donna
Alderson, d/b/a Alderson Lumber Company
CA 97-1037___ S.W.2d ___
Court of Appeals of Arkansas
Division IV
Opinion delivered April 1, 1998
1. Damages -- chancery court did not err in awarding -- supported by warranty
provision of timber deed and case law. -- Assuming, without deciding,
that appellant's characterization of his transaction with
appellee as the delivery of a timber deed rather than as a
contract for sale was correct, the appellate court concluded
that the chancery court did not err in awarding damages to
appellee; the chancery court's award of damages was correct,
given both the warranty provision of the timber deed appellant
delivered to appellee and supporting case law.
2. Damages -- damage would not have resulted but for subsequent conveyances
of land without reservation or exception of timber. -- Whether the
action was regarded as arising out of contract or as sounding
in tort, the effect was the same, since the damage would not
have resulted but for the subsequent conveyances of the land
without reservation or exception of the timber.
Appeal from Cross Chancery Court; Bentley Story, Chancellor;
affirmed.
Butler, Hicky & Long, by: Fletcher Long, Jr., for appellant.
Easley, Hicky, Cline & Hudson, by: Preston G. Hicky, forappellees.
John Mauzy Pittman, Judge.
This case involves the sale of standing timber by appellant
Walter Buford to appellees Jim Alderson and Donna Alderson, d/b/a
Alderson Lumber Company. The timber was located on eighty acres of
land owned by appellant Buford. Pursuant to the terms of the sale
agreement, Alderson had one year from September 22, 1994, to
harvest the timber. Buford appeals the amended judgment that the
Cross County Chancery Court entered against him in which the court
awarded Alderson damages of $35,700.90 for the timber that his
company was not able to harvest. We affirm the chancery court's
amended judgment.
Below, the chancery court prepared a memorandum opinion
setting forth its findings of fact. In this opinion, the chancery
court summarized the material facts of this case, in pertinent
part, as follows:
The facts are basically undisputed. In a nutshell,
Alderson Lumber Company [bought] the timber off 80 acresof land owned by Mr. Buford. The timber deed granted to
Alderson Lumber Company a period of one year to remove
the timber. The timber deed was not recorded. Mr.
Buford sold the 80-acre tract before the one-year period
had expired. The purchaser of the land ordered Alderson
Lumber Company off the land. Alderson Lumber Company
filed suit against Mr. Buford for breach of contract and
prayed for its lost profits as damages....
Alderson Lumber Co. employees began harvesting the
trees around October 1, 1994. They worked in the woods
until approximately December 1st when the winter rains
forced them from the woods. They started back to work on
the 80-acre tract in the spring of 1995.
On April 14, 1995, Mr. Buford, along with his co-tenants, sold the 80-acre tract to Mr. Willard G. Burks
and his wife. Mike Alderson [appellee Alderson's son]
first learned of the sale when Mr. Burks told him to
leave the woods. Mr. Buford never gave notice to Mike
Alderson nor Alderson Lumber Company that the land had
been sold. He never asked them when the timber cutting
would be finished. Mr. Buford testified that he thought
the timber cutting was finished when he received the
[purchase price] because Mike Alderson had told him that
he could not pay him until the logs were harvested. Mr.
Buford was paid on or about November 16, 1994.
On appeal, Buford presents a very narrow allegation of
error.See footnote 1 According to Buford, the chancery court erred in
characterizing the transaction at issue as a contract for the sale
of timber. Buford asserts that the transaction was not a contract
but was, instead, his delivery of a deed to the timber to appellee
Alderson in return for $17,200; therefore, he argues, he is not
liable to appellee Alderson for breach of a contract to sell the
timber at issue because there was no contract between them to be
breached. We note that the deed by which Buford conveyed the
timber to Alderson contained the following warranty provision,
"that [Buford], his heirs, successors and assigns, will warrant anddefend unto the Grantee, his heirs, successors and assigns, the
title and quiet possession to said timber and trees and to the land
whereon they are located, against the claims of all persons
whomsoever." We note further that Buford conveyed the eighty acres
at issue to the Burkses by a warranty deed that did not make any
mention of his previous sale of the timber on the acreage to
appellee Alderson.
Assuming, without deciding, that Buford's characterization of
his transaction with appellee Alderson as the delivery of a timber
deed is correct, we conclude that the chancery court did not err in
awarding damages to appellee Alderson. The chancery court's award
of damages was correct, given the warranty provision of the timber
deed Buford delivered to Alderson and given the Arkansas Supreme
Court's case of Koonce v. Fordyce Lumber Co., 123 Ark. 85, 184 S.W.
440 (1916). Koonce is on all fours with the material facts of this
case.
In Koonce, the Arkansas Supreme Court stated:
The [Fordyce] lumber company purchased the timber on
the lands in question in 1908 from appellants and the
same was conveyed to them by a warranty deed granting
twenty years in which to remove the timber. On July 11,
1913, appellant Koonce conveyed his one-half undivided
interest in the lands to appellant, McKee, by deed
without reserving or excepting the timber therefrom. On
February 13, 1914, McKee conveyed to R.S. Treadway and
W.J. Key without any exception or reservation of the
timber and the deed was recorded on the 28th of February.
This deed contained some lands on which the right of the
lumber company to cut timber had expired, and a lien was
retained therein to secure the unpaid purchase money and
subsequently on March 23, 1914, McKee and wife executed
a quit claim deed to said grantees releasing the vendor's
lien. On March 19, 1914, Treadway and Key conveyed all
the standing timber on the lands to Cox and Richardson,
who in the suit of the lumber company against them, were
held to be innocent purchasers thereof, and entitled to
the timber, after which decree appellee companyinstituted this suit. Its deed to the timber was not
recorded until April 13, 1914.
Appellants first demurred to the complaint for
misjoinder of parties and upon the demurrer being
overruled, answered admitting the making of the
conveyances of the timber and lands at the time alleged
and stated that the deed from Koonce to McKee of the one-half interest in the land was not intended to and did not
convey the timber, which both parties knew belonged to
the lumber company and was only intended to convey the
lands, that therefore no reservation or exception of the
timber was made therein; that upon the making of the deed
to Treadway and Key, it was understood between the
parties that the timber upon the lands was not conveyed
although no exception or reservation was contained in the
deed; that said grantees knew that the lumber company was
the owner of the timber.
They denied any liability to the lumber company for
the loss of the timber and alleged that if any damage or
loss was suffered, it was on account of the failure of
the company to record its deed to the timber, which they
supposed had been recorded. The timber conveyed to the
lumber company by appellants' deed and lost to them by
their subsequent conveyances of the land without
reservation or exception of the timber as set out, was
shown to be worth the sum of $3,500. Koonce and McKee
testified denying any intention to wrong the lumber
company or deprive it of the timber sold to it by the
later conveyances of the land, each testifying that they
notified the grantees down to and including Treadway and
Key that the timber belonged to the lumber company and
did not pass with the conveyance of the land. They also
stated that they had no information that the timber deed
was not recorded and in fact supposed it had been
recorded before making such conveyances.
....
.... Their [appellants'] testimony also shows that they
had no intention in fact or rather did not make the
conveyance of the land to the last grantees for the
purpose of defrauding the lumber company of the timber
already conveyed to it as they supposed its deed was of
record and would protect its interest. However, this may
be, it is unquestionably true that the conveyance of the
land conveyed the timber standing thereon and that this
fact was well known to appellants in making the deeds
thereto. They also knew that their conveyances of the
land contained no reservation or exception of the timber
thereon from the grant, and were chargeable of course
with knowledge that the conveyances of the land without
such reservation or exception of the timber, carried thetimber and would have effect to defeat their prior
conveyances of the timber to the lumber company if said
timber conveyance was not of record and the lands were
afterwards granted to a bona fide purchaser without
notice of it. Their affirmative action in making such
conveyances without proper exceptions and reservations to
protect their grantee of the timber whose deed might not
have been and was not recorded, had the same effect to
defeat its right and defraud the grantee of the timber as
though they had intended the result effected, and for
which they must be held answerable. They were owners as
tenants in common, each of an undivided half of the lands
upon which the timber stood, and conveyed the timber
thereon to the lumber company by a warranty deed granting
twenty years time for its removal, and their warranty was
broken, and their grantee appellee, deprived of the
timber by a bona fide purchaser through their subsequent
conveyances of the lands within said time without
reservation or exception of the timber, for the loss of
which they became liable. Whether the action be regarded
arising out of contract or sounding in tort, the effect
is the same, since the damage would not have resulted but
for their subsequent conveyances of the land without
reservation or exception of the timber....
Koonce v. Fordyce Lumber Co., 123 Ark. at 85-87, 89-90.
For the reasons set forth by the Arkansas Supreme Court in
Koonce, we affirm the amended judgment entered by the Cross County
Chancery Court in this case.
Affirmed.
Rogers and Neal, JJ., agree.
Footnote: 1
We note that no argument has been made concerning the application or effect of Ark. Code Ann. § 4-2-107 (Repl. 1991), or of Ark. Code Ann. § 4-2-312 (Repl. 1991).