October 19, 1915. The opinion of the Court was delivered by This case cannot be distinguished in any essential particular, either of law or fact, from the case of Minshew v. LumberCorporation, 98 S.C. 8, 81 S.E. 1027. It should be said, however, in fairness to the learned Judge, who wrote the opinion of the Circuit Court, that his opinion was filed before the opinion of this Court in Minshew's case was published.
In Minshew's case, the contract provided that the time limit should be five years from the time the grantee began cutting and removing the timber, but that it might be extended from year to year thereafter upon the payment of interest at 6 per centum per annum on the purchase price. It was held, inter alia, that the grant being silent as to when the cutting should begin, the law implied that it should begin within a reasonable time; that no general rule could be laid down as to what would be a reasonable time in all cases, but that must be determined upon the facts and circumstances of each case which were known to both parties at the time of making the contract; that facts or circumstances known to only one of the parties should not be considered in determining that issue, because they could not reasonably be supposed to have been within the contemplation of the other; that the right granted was of a terminable nature, and was terminated by the failure to begin cutting the timber within a reasonable time; that to obtain the benefit of an option for an extension of the time, the grantee must, before the time expires, pay or tender, yearly in advance, the agreed interest on the purchase price, according *Page 294 to the terms of the contract, and this because, after a reasonable time has elapsed, and the right has terminated, it cannot be revived by a mere offer to comply with the option for an extension. In that case, it was held that the failure to begin to cut for twelve years was unreasonable and forfeited the right.
In this case, fourteen years elapsed between the date of the conveyance and the commencement of this action, without action of any sort by the grantees looking to the exercise or the preservation of their rights under the deed. The tender of interest to secure an extension of time was not made until fifteen years after the conveyance, and a year after suit brought to remove the deed as a cloud on plaintiff's title. There is nothing in the evidence upon which this case can be differentiated from Minshew's case, and the decision must be the same — that defendant's right to cut the timber is gone.
The Circuit Court found that the failure to commence to cut for nearly fifteen years was unreasonable, but leaning no doubt to the principle of equity against forfeiture, held that the Court should fix the time within which the cutting should have been commenced just as if it had in fact been commenced, and thus put in operation the running of the first definite period of ten years. But the Court must enforce the contract as made and performed by the parties and declare their rights accordingly, and not as they should have made it, or exercised their rights under it. The Court can not, therefore, fix the time when the cutting should have begun, and add to that the ten years during which it might have been continued, if it had been begun, and, in addition to that, allow the defendant the option of extending it ten years longer by the payment of interest. Having fixed the time within which the cutting should have been commenced, and found that it was not commenced within that time; in other words, having found that the cutting had not been commenced within a reasonable time, it followed that the right *Page 295 to cut was ended, and it could not be revived or extended except by consent.
Upon the evidence and the authority of McSwain's case, 96 S.C. 155, 80 S.E. 87, we must overrule respondent's sustaining ground.
Judgment reversed.