On and prior to October 16, 1922, J.Q. Skipper, a widower, owned 275 acres of land and the timber thereon, which timber is here in question. On that date he made the following conveyance of the timber to appellant's predecessor in title:
"For and in consideration of Six Hundred Fifty Dollars ($650.00) to us cash in hand paid the receipt whereof is hereby acknowledged, we J.Q. Skipper ____, his wife, of Kemper County, Miss., have bargained and sold and by these presents do hereby bargain, sell, convey and warrant unto the Sumter Lumber Company, an Alabama corporation, domiciled at Electric Mills, Miss., all of the timber of whatever character or description, lying or being on the following described tracts or parcels of land, being situate in Kemper County, Miss., to wit: (Here follows a description of the lands.)
"Together with the privilege for and during a term of ten years from and after the date hereof, freely to enter upon and over said described lands, for the purpose of cutting and removing said timber, to construct and maintain wagon roads and logging railroads, and to do any and all things reasonably necessary or expedient in the logging of said timber and in the conduct of its said logging operations.
"It is understood and agreed that the Sumter Lumber Company will release the lands as quickly as possible *Page 606 before the expiration of ten years. In the event the timber cannot be removed before the expiration of the lease, the Sumter Lumber Company has the right to continuous yearly extensions at a price of $25.00 per year notice to be served by J.Q. Skipper as to payments being due."
The deed was properly acknowledged and was promptly placed on record in the deed records of Kemper County.
None of the timber was removed during the first ten years, nor has it yet been removed. However, beginning with October 16, 1932, and annually for four years, down to October 16, 1936, the right of removal was renewed by the annual payment of the $25.00 as stipulated in the concluding paragraph of the deed, the said annual payments having been made and accepted by voucher checks upon each of which there was a specific recital that it was given for twelve months' extension of time for removal of the timber on the said land, describing it.
In 1925, J.Q. Skipper conveyed to the trustees of the Springhill Consolidated School seventy-five acres of the land, and by two conveyances, one in 1932 and the other in 1934, he conveyed the remainder of the land to his son, S.Q. Skipper. When the check for the annual extension, beginning October 16, 1936, was sent by the lumber company, it was returned by the son, who, in doing so, wrote to the lumber company that his father was physically and mentally unable to look after business; that his father had sold part of the land to him, the son, with no mention of the timber; and that, therefore, the timber on the land so sold belonged to him, the son. Later the son was about to cut the timber, or some of it, and the lumber company filed its bill to have the dispute judicially determined, tendering the $25 for the annual renewal, which had been declined as aforesaid, and has tendered also the subsequent annual payments which have accrued pending the litigation. All persons who had any apparent interest as vendees or otherwise adverse to the lumber company were made parties to the suit. *Page 607
Although it was the first contention of the son that he had acquired title to the timber because there was no reservation of it in his deeds from his father, the position now taken by him and the other appellees is that the rights of the lumber company had expired by reason of its failure to remove the timber within the allowable period mentioned in the timber deed. They say, in that respect, that it had been possible for the lumber company to remove the timber within the original ten years, and certainly so during that period plus the four years' extensions which had been granted; and they say that any impossibility upon which the lumber company might rely must have been such as was the substantial equivalent of acts of God. The court took the latter view and adjudged that the title or right of the lumber company expired with the expiration of the last extension, or on October 16, 1936.
The lumber company contends that whatever may have been the result of the failure to remove the timber within the first ten years, had that failure been made an issue between the parties, during, or at the expiration of, that time, the said failure was wholly waived by the grantor of the timber by his subsequent renewals and the acceptance of the payments therefor; and that thereafter the deed stood as if no such provision for the removing of the timber as quickly as possible within the ten years had ever appeared in the deed — that after the first extension had been made, the lumber company was entitled to continuous yearly extensions so long as it paid the twenty-five dollars annually therefor, and it relies on Nichols v. Day,128 Miss. 756, 91 So. 451, in support of this contention. In brief, it is appellant's contention that the stipulation in respect to taking the timber away as soon as possible is not to be carried over into the extension periods.
In the alternative, the lumber company contends that, if mistaken in its position as stated in the next foregoing paragraph, then the provision in the deed as to the time *Page 608 or period respecting the removal of the timber as quickly as possible means a possibility within the reasons of commercial availability as measured by general business conditions — that it was never meant that the lumber company should be driven to take the timber away when, because of a depression in business conditions, particularly as affecting the lumber market, it could be done only at a loss of timber; that it could never have been contemplated that the grantee had paid a sizable sum for something which because of later depressed business conditions in the lumber and timber market, it would be required to take only by loss of a further sum. And the lumber company offered evidence, which the court declined to consider, that its failure to remove the timber within the period now in issue was due to general business conditions, such as have been mentioned.
The rules for the construction of deeds or contracts are designed to ascertain and follow the actual or probable intention of the parties, and are: When the language of the deed or contract is clear, definite, explicit, harmonious in all its provisions, and free from ambiguity throughout, the court looks solely to the language used in the instrument itself, and will give effect to each and all its parts as written. When, however, the language falls short of the qualities above mentioned and resort must be had to extrinsic aid, the court will look to the subject matter embraced therein, to the particular situation of the parties who made the instrument, and to the general situation touching the subject matter, that is to say, to all the conditions surrounding the parties at the time of the execution of the instrument, and to what, as may be fairly assumed, they had in contemplation in respect to all such said surrounding conditions, giving weight also to the future developments thereinabout which were reasonably to be anticipated or expected by them; and when the parties have for some time proceeded with or under the deed or contract, a large measure, and sometimes a controlling measure, of regard will be given *Page 609 to the practical construction which the parties themselves have given it, this on the common sense proposition that actions generally speak even louder than words.
In view of these rules, it is obvious that no such literal interpretation as that contended for by appellees, and adopted by the trial court, may be placed upon the requirement for the removal of the timber, to wit, "as quickly as possible." Certainly, the parties knew that it would be literally possible, physically possible, to remove the timber on a 275-acre tract long within ten years — that throughout such a period no such impossibility as that which would be the equivalent of an act of God would continue to intervene. The simple fact that they provided for eventualities beyond ten years demonstrates, therefore, that no such a literal possibility as has been mentioned was in the minds of the parties. That construction being rejected, what other then is to be accepted? The conclusion must be that the possibility in mind is one which, having regard to the character of the timber, the quantity thereof, its location and accessibility, and the general market conditions appertaining throughout the country as affecting the lumber industry, would permit the lumber company, situated as it was in relation to the land, reasonable care and diligence being exercised, to remove the timber without loss of the value thereof in whole or in part — care being taken that the mere convenience of the lumber company, or its individual inability, growing out of its own internal difficulties, save as to accidents and the like beyond its reasonable control, are not to be considered.
The parties by their own action in the premises, by their distinct conduct, recognized the proposition that under all the surrounding facts and circumstances the rights of the lumber company had not expired at the end of the first ten years; for they then renewed the contract for an additional year, one paying for the renewal and the other accepting the payment without any protest or question, or any suggestion of an objection. And likewise *Page 610 for a second, third and fourth renewal year. The only objection or question which was raised was as regards the renewal for the fifth year.
When the lease was renewed for the fourth year, that is to say from October 16, 1935, to October 16, 1936, all questions regarding the failure to remove the timber previous to October 16, 1935, were merged into that renewal and were removed from the domain of further debate or controversy — were foreclosed by the action of the parties themselves. The question of the possibility of removal is, therefore, brought down to the issue whether the situation was such that it could have been done from October 16, 1935, to October 16, 1936, as to which period we think that a reasonable and just construction is that the stipulation as to removal as soon as possible is to be brought forward. We think it must be considered as improbable that the grantor who had twice expressed the requirement that the timber should be removed as quickly as possible within the first ten years would have been indifferent to that requirement as to the extension periods when the annual payments for those extensions were scarcely enough, if enough, to cover the taxes. But whether such a possibility was within the reasonable reach of the lumber company within that year is to be ascertained by applying to the facts the inpretation as respects possibility which we have heretofore indicated as to the meaning of that term. As already stated, the chancellor proceeded upon a different theory, as shown by his opinion rendered at the request of the parties, and the case must, therefore, be remanded for a new trial, and for a decision or finding by the chancellor on the stated issue.
We have not overlooked the argument by appellant that, in any event and inasmuch as the Skippers had renewed the lease year by year without objection, appellant was entitled to assume that they would continue to renew it unless and until the Skippers gave notice a reasonable time before the expiration of the last renewal that *Page 611 there would be no further renewal. No such notice was given by the Skippers; but it is admitted that when the last renewal was made in the fall of 1935, Sam Skipper then told appellant that he desired to farm the land and that he wanted the timber removed as soon as it could be done. In this situation, appellant was not entitled to assume that the lease would be renewed beyond October 16, 1936, if during the year immediately preceding that date the removal were reasonably possible — using the term "possible" always as we have hereinabove indicated.
It would seem hardly necessary to add that the subsequent vendees of J.Q. Skipper, or their vendees, would have no rights higher than, or different from, that of J.Q. Skipper, had he made no subsequent conveyance. The deed was on record and all persons had constructive notice of appellant's rights in respect to the timber.
The foregoing opinion reflects the views of the writer and of McGEHEE, J., and SMITH, C.J. The other judges will express themselves in separate opinions.