On Rehearing. Upon this application counsel for appellant stress the point that in the opinion rendered this court approved the finding that the complainant had a period of five years under the contract within which to remove the timber, and that this time would expire March 12, 1947, some two days before the final decree was rendered in the court below, on March 14, 1947, and that respondent in no manner interfered with complainant in his milling operations during this period. We are cited to Heflin v. Bingham, 56 Ala. 566, 28 Am.Rep. 776, and Gibbs v. Wright,5 Ala. App. 486, 57 So. 258, to sustain the argument that the complainant had lost his right to the timber by reason of expiration of the five-year period before the rendition of the final decree, notwithstanding the filing of the bill on March 8, 1944. *Page 193
The brief in support of this insistence assumes that the holding of the lower court, as well as that here rendered, was to the effect that the respondent in no manner interfered in complainant's milling operations. In speaking of the question of interference, the decree from which this appeal was taken was making reference to complainant's claim for damages by reason of respondent's interference with his milling operations. The court stated in substance that the proof was too uncertain as to the ascertainment of any particular amount of damages. But there was no holding that there was no interference on complainant's part, and this court did not intend to so indicate in the opinion heretofore rendered. Indeed, the proof is to the contrary. Respondent had interfered with the milling operations and evidently either himself or through others placed signs on the premises against the trespassing or cutting of timber. Not only so, but we are persuaded that respondent was responsible for some few shots which were fired when complainant and one of his employes were on the premises. The respondent positively declined to carry out the contract though there was only the sum of two thousand dollars out of the fifteen thousand dollars remaining unpaid.
On numerous occasions complainant made effort to have the respondent execute a deed to the property, and we are persuaded that any such refusal was not rested upon any imperfections or mistakes in the language of the deed which was tendered. Complainant testifies to conversation with the respondent wherein the latter referred to an offer by another of twenty-seven thousand dollars for the timber he had seen on the property and that he would sign the deed if complainant would sell to this man and give him half the money. Complainant very naturally inquired: "What about my thirteen thousand dollars, I paid you?" Respondent replied: "That's mine." Complainant was asked the question: "You just couldn't get a deed from him?" He answered: "No sir." And respondent replied: "I ain't executed to you no deed; that ain't the hell of it, I am not going to do it." Complainant then tells about how the respondent stopped his men on different occasions, posted the land, when he and his men would go into the woods forbidding them to go in. A court proceeding was his only resort.
When the bill was filed respondent resisted by all means at his command any relief to be given complainant, including sale of the land for division, and insisting all along, both by allegations and proof, that his time for cutting the timber was two years and had expired.
The testimony seems to have been taken in February, 1946. From a careful study of this record the court is fully persuaded that respondent simply became dissatisfied with the trade and restless over the fact that his brother, this complainant, was evidently making more clear profit out of the transaction than was anticipated. The authorities cited by counsel for appellant are, in our opinion, not here applicable. The rule generally recognized (34 Am.J. 515; National Bank of Newberry v. Livingston, 164 S.C. 2, 161 S.E. 769; Halla v. Rogers, 9 Cir., 176 F. 709, 34 L.R.A., N.S., 120; 58 C.J. 1222) as applicable to this situation is found stated in Roberson v. Little, 200 Ala. 582, 76 So. 940, as follows: "That where the vendee's failure to remove timber during the time stipulated in his deed has been due to interference by the owner of the soil, his right to a reasonable time thereafter in which to remove will be declared and enforced by appropriate decree in equity." And as stated by the Wisconsin court in Peshtigo Lumber Co. v. Ellis, 122 Wis. 433, 100 N.W. 834, 835: "[Equity recognizes and enforces] the principle is that 'he who prevents a thing being done shall not avail himself of the non performance he has occasioned.' "
The decree of the lower court orders the sale of the land for division and a reference for the ascertainment of the amount and value of the timber, if any, still remaining on the lands of the specified dimensions as of March 12, 1942. The register is also directed to calculate the interest on the sum of two thousand dollars yet remaining due on the purchase price, and to deduct the same from the share of the complainant and add the same to the share *Page 194 of the respondent on a division of the proceeds arising from a sale of the land. The register was also directed to ascertain the number and value of the trees, if any, cut by complainant during his timbering operations as less than the specified dimensions as of March 12, 1942. In the decree thus rendered the court assumes that is to be done which should be done and provides upon the coming in of the register's report an equitable solution of this litigation.
We have felt it appropriate to make this response in answer to the earnest insistence of counsel for appellant.
Entertaining the view, however, that our original opinion is correct, the application for rehearing will be overruled. It is so ordered.
Application overruled.
FOSTER, LAWSON, and STAKELY, JJ., concur.