#### DENA MORTON, Guardian of ERNEST LOYD and JUNIE LOYD, v. PINE LUMBER COMPANY.

(Filed 8 October, 1919.)

1. Deeds and Conveyances — Timber — Real Estate — Cutting Period — De-feasible Fee.

Timber standing and growing upon lands is realty, and subject to tbe same laws of devolution and transfer; and deeds to such timber, stating a period of time in which the timber may be cut and removed by the grantee, conveys an estate of absolute ownership accordingly, defeasible as to all timber conveyed which has not been cut and removed within the specified time.

2. Same — Extension—Option—Interest—Contracts.

Stipulations in a deed conveying timber standing and growing upon lands for the cutting and removing of the timber beyond the period *164stated therefor in the conveyance, upon the payment of an agreed sum or price, are in the nature of options and do not in themselves create any interest in the timber, but amount only to an offer to create such interest when the conditions are performed, working a forfeiture when not strictly complied with.

3. Same — Descent and Distribution — Heirs at Law — Payments.

The title to timber standing and growing upon lands descends at the owner’s death to his heirs at law, and where be had conveyed the timber his heirs at law are entitled to the payment, required of the grantee for an extension of the time allowed him for cutting and removing the timber beyond the original period stated in the conveyance, and when such payment has not either been made or tendered in the time stipulated for, the grantee loses all the rights he would otherwise have had under the terms of his deed.

4. Same — Widow—Dower.

Where it appears that the husband was the owner of the lands, and his wife has joined in the conveyance of the timber thereon, and is named as one of the parties of the first part in the granting clauses, this, prima facie, should only -serve to pass her rights appertaining to her as the wife of the owner, and a payment by the grantee for the privilege of an extension of the right to cut, etc., the timber beyond the original period named, after the death of the owner, should be made to the heirs at law to be enforceable, and not to his widow, especially before the allotment of her dower has been made.

5. Deeds'and Conveyances — Timber—Option—Payment—Deceased Owner— Heirs — Receipt—Guardian.

Where a grantee of timber relies upon a payment of the stipulated amount to acquire an extension of the period for cutting and removing the timber, made after the death of the owner, to the guardian or his minor children, his heirs at law, it is necessary for the sufficiency of such payment that proper proceedings shall have been had under the statutes Rev., secs. 1800, 1798, 1788 and 1789, which require the supervision of the court, in a prescribed way, for the disposition by the guardian of his wards’ estate, and a payment or tender made to the guardian otherwise is ineffectual.

6. Descent and Distribution — Heirs—Title—Possession—Dower.

The possession and the right thereto of the lands of a deceased owner, dying intestate, is in his heirs at law, before the dower of his widow has been allotted therein.

7. Injunction — Deeds and Conveyances — Timber—Deceased Owner — Option —Payment—Heirs.

An injunction against the grantee of standing timber should be made permanent when it is properly established that he is cutting the timber from the lands after the death of the owner, and has failed to pay to the heirs at law, entitled to receive it, a stipulated price for an extension period, under which he claims the right.

Allen, J., dissenting.

ActioN to restrain cutting of timber and for damages, determined on •final hearing before Guión, J., at April Term, 1919, of Onslow.

*165Tbe court was of the opinion that on the pleadings and exhibits made in the cause plaintiffs had shown no right to relief, and thereupon adjudged that defendants go without day. Plaintiffs excepted and appealed.

Duffy & Day, E. M. Koonce and Gowper, Whitalcer & Allen for plaintiff.

Franic Thompson and L. B. Varser for defendant.

LIoke, J.

On the hearing it appeared that on 8 April, 1905, John Loyd, owner, with his wife, in consideration of $30, conveyed to the Swansboro Lumber Company the timber of every description of 12 inches and upward standing and growing upon three tracts of land aggregating 103 acres, with right to cut same at any time within ten years from date of the deed, with the privilege of renewal for ten years on request of grantee, etc., and on payment of $10 annually for said period. For the same consideration for like period the right to build all necessary tracks and tramways, etc., was also conveyed with privilege of cutting any timber under said size to be used in construction. In same deed there was also conveyed a permanent right of way for a railroad 60 feet wide over said land, and with the stipulation that the owner should not cut during these periods any timber from said land under the size, 12 inches, except what was necessarily required for fencing; and further, that the parties of the first part should pay all taxes and assessments upon said land and timber so long as the contract should remain in force, etc. That soon after the execution of this deed and contract John Loyd, the owner, died, leaving him surviving his widow, Dena (now intermarried with Gardock Morton), and two children, plaintiffs in this suit, Ernest Loyd and Junie Loyd, who were then and are now infants. That nothing further was done under the contract until 6 April, 1915, when the Swansboro Lumber Company, grantee in the deed, paid to Dena Morton $10 and-took a written receipt therefor signed by said Dena and her then husband, Gardock Morton, specifying that the same was in payment for one year’s extension on the timber deed of Mr. Lloyd and wife. And thereafter, to wit, on 25 March, 1916, the Swansboro Lumber Company, having conveyed their interest to the Pine Lumber Company, and Dena Morton having meantime qualified as guardian of plaintiffs, the said Pine Lumber Company paid to said guardian $50 and took a written receipt therefor specifying that same was a payment in full for five years extension for the right and privilege of cutting said timber.

It appeared further that the said Pine Lumber Company were preparing and intended to cut the timber from said land, claiming that *166they had the legal right to do so under their deed from the Swansboro Lumber Company and by virtue of the payments referred to.

In a recent case before the Court, Lumber Co. v. Wells, it was said to be the correct deduction from many of our decisions on the subject “That standing lumber is realty,” subject to the laws of devolution and transfer applicable to that kind of property, and that lumber deeds such as this convey an estate of absolute ownership defeasible as to all timber not cut and removed within the specified period, citing Williams v. Parsons, 167 N. C., 529; Midyetie v. Grubbs, 145 N. C., 85; Lumber Co. v. Corey, 140 N. C., 462.

And further, that stipulations for an extension of time are in the nature of options, and that they do not in themselves create any interest in the property brrt amount only to an offer to create such interest when the conditions are performed and working a forfeiture when not strictly complied with, citing Waterman v. Banks, 144 U. S., 394; Thacker v. Weston, 197 Mass., 143, and other cases. And again, that “where the time first provided for in a deed of this character has passed and it becomes necessary for the grantee to hold by reason of performance of the stipulation for extension that this estate or interest arises at the time the conditions are complied with, and in the absence of any provision in his deed to the contrary the price paid belongs to him who-then has the estate, and from whose ownership the interest is then created. The option or privilege obtained to the extent- of the right conferred is a contract attendant on the title, and as stated, unless otherwise provided in the deed conveying the title, the price for the interest in the proper performance of the conditions will inure to the owner. It is from his estate that this interest passes and he must receive the purchase price.”

In further illustration of the principle it was held in another case in the same volume, Carolina Timber Co. v. Bryan, 171 N. C., 265, that when the owner has died, during the first period, nothing else appearing, the title descended to the heirs and that they and not the executor are entitled to receive the purchase money.

On the facts presented and a proper application of these principles, approved in Mizell v. Lumber Co., 174 N. C., 68, and many other cases, we are of opinion that the restraining orders heretofore issued in the cause should be made permanent and defendants perpetually enjoined from any further cutting of timber. On the death of John Loyd, the owner, the land descended to the infant plaintiffs, his children and heirs at law, and on the record there is no valid claim or suggestion that any tender of the extension money was ever made to them within the time required for the first payment nor to any one having lawful right to create or convey a permanent interest in their property.

*167Until dower is allotted tbe possession and tbe right thereto was in tbe heirs, and tbe widow as such bad no power to bind them in any way concerning it. Fishel v. Browning, 145 N. C., 71. Tbe payment of the money to tbe widow, therefore, for tbe first year’s extension just two days before tbe time limit bad expired could not affect their interest, and there being no other payment within that time for tbe first year’s extension, this of itself would work a forfeiture, for these contracts as stated are to be strictly construed, and tbe agreement requires that the extension money should be paid or properly tendered year by year. Eureka Lumber Co. v. Whitley, 163 N. C., 47; Rountree v. Cohn-Bock Co., 158 N. C., 153; Bateman v. Lumber Co., 154 N. C., 248; Product Co. v. Dunn, 142 N. C., 471. And if it were open to consideration tbe attempted payment to tbe guardian is equally without effect. This being for tbe five years following tbe first year. A perusal of our statutes on tbe subject will show that tbe power of a guardian to make disposition of bis ward’s real estate is very carefully regulated and a sale is not allowed except on petition filed, and tbe order must in all cases have tbe supervision and approval of tbe judge. Bev., secs. 1800, 1798, 1788, 1789. And this tender which, as we have seen, when rightly made serves frequently to create or convey an interest in tbe real estate of tbe infant ward, could not be sanctioned or made effective by tbe mere receipt of tbe guardian but would require a court proceeding where tbe ward’s interest could be supervised and cared for, as tbe law contemplates and directs. LeRoy v. Jacobosky, 136 N. C., 443. An examination of tbe present contract affords us apt instance and illustration of tbe wisdom of tbe provisions of our law on tbe subject. Tbe suggestion that by tbe terms of tbe deed tbe wife could receive tbe extension money as one of tbe grantors of tbe deed is without merit. It being made to appear that tbe land belonged to her deceased husband, if her name is included in tbe “granting clauses of tbe deed as one of tbe parties of tbe, first part,” this, prima facie, should Only serve to pass tbe rights appertaining to her as wife of tbe owner, her inchoate right of dower, etc., and beyond that would be regarded as a mere formality. And even since tbe Martin Act empowering tbe wife to contract and deal as if she were a feme sole (Laws 1911, ch. 109), tbe covenants and stipulations in such a deed should not be allowed to affect her except to tbe extent of her interest, and would give her no power to bind tbe owners of tbe inheritance unless otherwise clearly and plainly expressed in the instrument. Coble v. Barringer, 171 N. C., 445; 13 R. C. L., pp. 1325-26; 2 Develin on Deeds, sec. 955.

There is error, and this will be certified that a judgment for permanent injunction be entered.

Eeversed.

*168AlleN, J.,

dissenting: I do not agree to tbe disposition of tbis case, because there was no one in being at the time of the expiration of the time for cutting the timber to whom the money for the extension could be paid, as the title had descended to infants without guardian, and the money was paid to the guardian as soon as one was appointed and before one year of the extension period had expired.

I also think, in any event, provision ought to be made for the return of the amount paid to the guardian.