I do not agree to the conclusion reached by the other members of the Court. It rests upon a contract which the parties did not make.
The purchasers of the timber and the seller, Reid Lumber Company, agreed in writing to the terms under which the purchasers could enter upon, cut and remove the timber on the land described. They agreed to a division of the timber into five tracts; that the cutting and removal of timber should begin on tract No. 1 and be completed before the purchasers should begin cutting on tract No. 2; that the timber on each tract was to be exhausted by cutting to the amount of the agreed estimate of footage for the particular tract before the purchasers should begin cutting on the next tract in numerical sequence.
It was definitely agreed that should the purchasers desire, before completing the cutting on any one tract, to remove to the next tract in sequence they should first pay the estimated value of the timber on the tract on which they were cutting, according to the agreed estimate of footage at $7.50 per thousand.
In that event only were they authorized under the contract to proceed to the tract next in sequence and cut and remove the timber therefrom.
The contract was perfectly valid. The seller took that method of securing the promises to pay for the entire lot of timber sold. It was the only security which the seller had retained for the fulfillment of the contract by the purchasers. The conclusion reached destroys that security which the parties by a valid agreement among themselves *Page 327 set up for the faithful execution of the contract by the purchasers.
When the bill was filed the purchasers had moved from tract No. 1 to tract No. 2 and thence to tract No. 3 and on the latter had cut approximately 695,000 feet of timber. The removal to tract No. 3 occurred January 11, 1928. Under the terms of the contract when the purchasers desired to remove to tract No. 3 they should have paid to the seller, exclusive of the cash payment of $5,000 when the contract was signed, the sum of $30,599.
Four notes on January 15, 1928, aggregating $20,000, had become due and were paid. Later when the note due in February matured it was paid, but there still remained due when the purchasers removed to tract No. 3 the sum of $5,599. Before the bill was filed the purchasers had cut on tract No. 3 timber to the value of $5,212, making a total of $10,811 more than the aggregate amount of the notes paid to March 10, 1928, when the bill was filed.
The security of the seller therefore was impaired to that extent.
If the conclusion reached by the majority is correct it follows that under the terms of the agreement the purchasers could have put a sufficient force of laborers on the land to strip it of its timber before the due date of the fifth note and left the seller to its remedy at law on the remaining ten notes aggregating a balance due of $47,453.75. The security of the seller would have been destroyed by the wrongful act of the purchasers yet the seller would be deemed by the Court to have suffered no injury because it is assumed that in the absence of an allegation of defendants' insolvency they would be able to respond and would respond in damages to the seller in actions upon the notes as they became due respectively.
Under the law, as it exists in this State, the unlawful *Page 328 destruction of timber by another is per se an irreparable injury to its owner where the trees constitute the principal value of his estate, and the complainant's equity in this case in no wise depends upon the matter of defendants' insolvency.
Nor can it be said that under the terms of the agreement the conveyance of the standing timber on all the tracts to the purchaser was one in praesenti. Their right to enter upon, cut and remove the timber depended upon the performance by them of the contract on their part to be performed with respect to each tract.
I think the order appealed from should be affirmed.
BROWN, J., concurs.