His Honor adjudged as follows:
"That the plaintiff, Deborah V. Warren, is the owner and (41) entitled to the immediate possession of all timber standing and *Page 23 growing upon a certain tract of land described in a contract between Deborah V. Warren and E. M. Short, dated 11 December, 1888, and recorded in the Register's office of Beaufort County, which measured less than twelve inches in diameter at the stump at the date of said contract, although the said timber may exceed that size at this time, saving and excepting such of the timber upon said land as the defendant may need for constructing railroads and tramways on said land or for rafting the timber cut thereon under the contract aforesaid. It is further adjudged the plaintiff recover of the defendant the costs of this proceeding, to be taxed by the Clerk."
From this judgment the defendant appealed. A conveyance of land at common law was deemed, unless a contrary intent was expressed in the deed, to relate to the date of its execution, and hence in construing the Statute of Wills (which contained the words "having an estate of inheritance") the courts decided that devises, being a species of conveyance, only land to which the devisor had title at the date of the execution of the instrument, not land acquired between that time and his death, passed by a general disposition of all of his land. 2 Blk., p. 378. A person may convey the whole mineral interest, or only a particular mineral, or the whole of the timber, or only certain trees designated by dimensions or species, or by both, and in either case such trees pass as fulfill the description at the time of executing the conveyance. The modification of the common-law (42) principle, in so far as it relates to devises, in no way affects its application to deeds of conveyance. Upon this principle, as well as upon the reason of the thing, it was held in Whitted v. Smith,47 N.C. 36, that an exception in a deed of "all the pine timber that will square one foot" embraced only such timber as had attained the size specified at the time. An exception in a deed of a part of the thing granted must be described with the same certainty as the subject-matter of the conveyance, and hence the rules for ascertaining what is excepted must be the same as those for determining what passes by the deed.
The conveyance contained no language which evinced a purpose to take the instrument out of the general rule. One may convey something that has no potential existence, subject to such restrictions as are imposed by public policy, provided, always, he expresses with sufficient clearness his intent to do so. Williams v. Chapman, 118 N.C. 943; Brown v. Dail, 117 N.C. 41;Loftin v. Hines, 107 N.C. 360. The deed might have been so drawn as to pass all trees that would attain the size mentioned within a reasonable, though not for an indefinite *Page 24 period, but the terms of the deed cover none that did not fill the description at its date, and no others passed. Robinson v. Gee, 26 N.C. 186.
For the reasons given the judgment of the court below is
AFFIRMED.
Cited: Hardison v. Lumber Co., 136 N.C. 175; Banks v. Lumber Co.,142 N.C. 50; Isler v. Lumber Co., 146 N.C. 557; Whitfield v. Lumber Co.,152 N.C. 213; Kelly v. Lumber Co., 157 N.C. 178; Veneer Co. v. Ange,165 N.C. 57; Mfg. Co. v. Thomas, 167 N.C. 111; Gilbert v. Shingle Co.,ib., 289.
(43)