#### H. T. WARWICK v. MOLLIE L. TAYLOR, Administratrix of L. L. TAYLOR.

(Filed 17 September, 1913.)

1. Timber Deeds — Period of Cutting — Reversion.

When the grantee in a deed conveying standing timber on lands, with an optional extension period for cutting, desires the further time allowed, he must comply with the conditions imposed in the conveyance, or the timber uncut after the original time allowed will revert to the grantor or his assigns-.

2. Trials — Timber Deeds — Conveyance in Affirmance — Timber Reserved — Damages—Evidence.

The defendant in a timber deed conveyed the timber described in his deed, and his grantee failed to finish cutting it in the time allowed. The plaintiff, to whom the -original owner conveyed the land, executed a conveyance of the timber to the defendant’s grantee, confirming his original deed and extending the time for cutting and removing the timber, which was accordingly done in the stated period: MeU,, the grantee of the defendant acquired his right to cut the timber under the plaintiff’s deed, and the defendant cannot be held liable for damages caused by his cutting timber on the land which had been reserved.

*693. New Trials — Motions—Newly Discovered Evidence — Supreme Court — Character of Evidence.

A motion for a new trial upon the. grounds of newly discovered evidence will only be granted when it is made to appear that it is very probable that substantial injustice has been done by reason of unavoidable failure of the moving party to produce the evidence at the trial, which would have resulted in a different determination • of the action in the interest of- right and justice; and evidence which is merely cumulative is not ordinarily held sufficient. Hence such motions when made in the Supreme Court for the - first time will not be granted where there is no assignment of error appearing of record as to anything that occurred at the trial. •

. Appeal by plaintiff from Cooke, J., at tbe March Term, 1913, Of NORTHAMPTON.

Civil action.

From a judgment of nonsuit, upon tbe first cause of action stated in complaint, plaintiff appeals.

Plaintiff also moves in tbe Supreme Court for a new trial upon tbe second cause of action, upon tbe ground of newly discovered evidence.

Tbe facts are stated in tbe opinion of tbe Court.

W. H. S. Burgwyn, Mason, Worrell & Long for plaintiff.

Peebles & Peebles, Cay .& Midgette for defendant.

Frown, J.

Tbe facts pertinent to tbe first cause of action are these: Plaintiff conveyed to L. L. Taylor, tbe intestate, by deed dated 20 June, 1899, all tbe pine and oak timber of certain dimensions on a tract of land, to be cut and removed within seven years.. Tbe deed was duly recorded 22 ’July, 1899. Tbe said Taylor then gave to tbe plaintiff tbe following paper:

I, L. L. Taylor, do hereby give H. T. Warwick permission to cut tbe scattering pine timber on tbe bill on 2% acres of bis land lying on tbe southeast corner of bis bouse where be has been cutting cordwood, near a pond or drain in said woods.

L. L. Taylor.

Witness: J. L. Harris.

This was recorded 4 April,-1913.

*70On 7 November, 1901, L. L. Taylor conveyed all said standing timber to tbe Camp Manufacturing Company by deed recorded 7 January, 1902.

Under tbe deed from plaintiff to Taylor, tbe time witbin wbicb tbe timber must be cut and removed expired 20 June, 1906, but on 9 July, 1902, tbe plaintiff executed a deed to tbe Camp Manufacturing Company, confirming tbe original conveyance, and conferring upon said company tbe right to cut and remove all tbe timber until 20 June, 1908. Tbis deed was recorded 19 July, 1902.'

During tbe extended period of two years, between 20 June, 1906, and 20 June, 1908, the Camp Company cut and removed all tbe said timber, including “tbe scattering pine timber on tbe bill on 2acres” described.in tbe paper-writing given by Taylor to 'Warwick, supra, numbering some nineteen sticks.

Upon these facts, tbe motion to nonsuit was properly sustained.

Tbe evidence shows that all tbe timber was cut and removed by tbe Camp Manufacturing Campany after tbe time limit in tbe deed from plaintiff to Taylor and Taylor to Camp bad expired. None of it was cut by the defendant’s intestate, Taylor.

Tbe authority of Camp to cut tbe timber was plaintiff’s deed to Camp, dated 9 July, 1902, extending tbe time authorizing tbe cutting for two years. Had plaintiff not executed tbis instrument, all tbe timber, including tbe “scattering pine timber on tbe bill,” would have reverted to him.

It is difficult to conceive upon tbis state of facts why plaintiff should recover against Taylor.

There is no assignment of error by tbe plaintiff as to anything that occurred at tbe trial of bis second cause of action, and be relies solely upon bis motion for a new trial for alleged newly discovered testimony as to said second cause of action, wbicb said motion is made for tbe first time in tbis Court.

Motions for new trial founded upon alleged newly discovered évidence are carefully scrutinized, and we are not disposed to grant them except for substantial cause in cases that come strictly witbin tbe established rules of law applicable to them. Simmons v. Mann, 92 N. C., 16.

*71This Court will not grant a new trial for newly discovered evidence for light causes and considerations. It will do so only in eases where it is very probable that substantial injustice has been done by reason of the unavoidable failure to produce the evidence on the trial, and when also it is probable that upon a new trial a different result will be reached and the right will prevail. Evidence merely cumulative is generally considered as insufficient. Simmons v. Mann, supra.

We have examined carefully the affidavits in'support of the motion, and the same is denied.

The judgment of the Superior Court is

Affirmed.