On August 4, 1906, appellee Warren Vehicle Stock Company purchased from one Mrs. Heath the timber on 400 acres of land owned by her for a consideration of $900 cash. On November 7, 1912, Mrs. Heath conveyed the timber on the same lands to appellant, and this litigation involves the title to that timber.
The deed to appellee, Warren Vehicle 'Stock Company, appears to have been what is called an “Expeditious Timber Deed. ’ ’ This deed contained the following stipulation:
£ £ The party of the second part shall cut and remove said timber as expeditiously as possible, and it is agreed that unless it shall have removed all the same within a period of ten years from the date hereof, that it shall be responsible for and pay to the first party the full amount of taxes assessed against said lands after the expiration of said period of ten years from this date until such times as said timber is removed and said possession returned to said first party. The said second party shall have free and uninterrupted possession of said land during the term of this indenture for the purpose herein set forth, and shall have free ingress and egress thereto and therefrom, with the right to build and operate tram or railroad on to or across said land for the purpose of transporting the timber therefrom, or for transportation of timber belonging to or that may belong to said second party, and to this end shall he regarded as the holder of said land, to sue for and recover the same from all persons whatever, holding or attempting- to hold the same; provided, that the said first party, its heirs or legal assigns, may retain such possession of said land, at all times, as shall not interfere with the rights of the second party under this 'deed for the purpose aforesaid.” The provision for free and uninterrupted possession of the land, with the right of ingress and egress, does not add anything to the time given for the removal of the timber, but only undertakes to deal with the question of possession.
By comparison it will he seen that the contract for the sale of the timber is identical with the instrument set out in the case of Earl v. Harris, 99 Ark. 112, except that in that case the period of removal was limited to five years, whereas in the instant case ten years were given for that purpose.
Appellee out and removed some of the oak timber, but says that the larger and more valuable portion of it still remains standing thereon. As an excuse for its failure to remove the timber, it offered evidence tending to establish the following facts: It operated the mill until the panic of 1907, when the lumber market was so affected that the mill began to lose money, and continued to operate at a loss until September, 1908, by which time the company’s capital w-a-s wiped out and it was insolvent, and for the want of funds with which to run, and a market for its output, the company closed the mill down, expecting to again operate it as soon as it could recover, and the price of the products should go up, but its intention was, preferably, to sell out its holdings and get another company to operate its plant. In its efforts to sell and get -another mill in operation and get the Heath timber off, a sale was effected to a concern, which was made a party to this proceeding, known as the Texas Hardwood Lumber Company, in December, 1912. After cutting and removing some of the timber the vehicle company ceased cutting it entirely for several years, during all of which time it was apparently waiting for an improved market, or an advantageous opportunity to sell its interest.
(1) The exouse given for appellee’s failure to remove the timber was insufficient. Ingham Lumber Co. v. Ingersoll, 93 Ark. 447.
But appellees insist that, under the terms of their contract, they 'had at all events at least ten years in which to remove the timber, and as much longer as might be necessary, providing they were proceeding expeditiously to remove it.
This contract was construed in the case of Earle v. Harris, supra, where it was said: “Viewed in-this way, we think that by this provision (the one set out above) the parties intended that the defendant should out and remove the timber from the land as expeditiously as possible, and that it was within the contemplation of the parties at the time that it might take, the defendant longer than five years from the date of the deed in which to cut and remove the timber, although he proceeded with all possible expedition. One of the primary purposes, however, of this stipulation, we think, was that the defendant should begin to cut and remove the timber promptly after the contract was made, .and that he should continue to cut and remove the same as expeditiously as possible from that date until it was all out and removed. While this was considered essential, yet it was thought by the parties that, under the conditions and circumstances then surrounding the land and removal of the timber therefrom, it might take the defendant longer than five years in which to cut and remove the same, though he proceeded with proper dispatch; and in that event it was agreed that he should have longer, than five years in which to out and remove the same; and, the length of time which he should have after the five years not being specified, defendant had a reasonable time after the five years in which to remove the timber if he proceeded during all such time as expeditiously as possible. The specification of five years was made, we think, only for the purpose of fixing the amount which the defendant should pay for the timber. If, by proceeding with all possible expedition, he should cut and remove the timber within the period of five years, he should pay no further consideration than that which was named in the deed; /but, if, while proceeding with all possible expedition, he should require longer than said five years in which to •cut and remove the timber, then he would be required to pay an additional sum therefor, which was the amount of the taxes assessed against the land. In any event he was required to cut and remove the timber as expeditiously as possible, and he did not therefore have either five years or .any other definite 'time in which to cut and remove the timber if he did not proceed continuously with all possible expedition from the date of the deed.”
A contract with similar, if not identical, provisions was again construed by this court in the case of Yelvington v. Short, 111 Ark. 253, in which it was said (to quote the syllabus) :
“Where a contract for the sale and removal of timber provides, that the vendee shall cut and remove the timber as expeditiously as possible, and that unless it is removed within a period of two years the vendee shall be responsible for the taxes until it is removed, the grantee is required to cut and remove the timber as expeditiously as possible, and he did not have either a period of two years or 'any ether definite time in which to cut .and remove the timber, if he did not proceed expeditiously and continuously from the date of the deed. Earl v. Harris, 99 Ark. 112, followed.”
(2) Upon the authority of those two cases we must hold that the contract in suit did not give absolutely and at all events any definite time for the removal of the timber. The purpose of this contract was to require the timber to be removed expeditiously,' and sufficient time for that purpose was given. This might exceed ten years, or it might not require that length of time, but the right to cut and remove the timber expired when a reasonable time had been given for its expeditious removal.
The case of Earl v. Harris, supra, explains the provision in reference to the payment of taxes and need not be repeated here..
The decree of the chancellor is, therefore, reversed and the cause will be remanded with directions to set aside the decree cancelling the deed of appellant and to dismiss this cause at the cost of appellee.
Hart, and Kirby, JJ., dissent.