M. W. Wimberly for H. T. Wimberly by Nicholson. There was evidence tending to show that this contention was settled by Scott & Co's acceptance of an obligation payable to them signed by W. J. Nicholson and H. T. Wimberly, and which is the foundation of the present action. The defendant, H. T. Wimberly, filed a sworn plea of non est factum. H. T. Wimberly defended also upon the ground that his name was signed as a mere surety to the obligation. It was admitted M. W. Wimberly signed the name of H. T. Wimberly. The following power of attorney executed by H. T. Wimberly to M. W. Wimberly, was introduced in evidence:

412

"Greenville, Ala., Feb. 5th, 1886. "Know all men that I, the undersigned of Loachapoka, Ala., do hereby make, constitute, and appoint M. W. Wimberly of Greenville, Ala., my true and lawful attorney, for me, and in my name and stead to carry on a general mercantile business in the city of Greenville, Ala., to do and perform all the necessary acts in the execution and promotion of the aforesaid business and in as full and ample a manner as I might do, if I were personally present."

The power of attorney authorized the agent to make the settlement that was made with Scott & Co. The business was within the scope of his authority. The case is distinguishable from the principles declared in Scarbrough v. Reynolds, 12 Ala. 252; Brantly v. So. Life Ins. Co., 53 Ala. 554.

Whether his name was signed as principal or surety, he was equally bound by the obligation, but the facts show he was directly interested in, and benefited by, the settlement made by Scott & Co., in regard to the cotton, and this settlement was the consideration of the contract sued upon. His relation was not that of a mere surety: Mobile etc. R. R. Co. v. Nicholas, 98 Ala. 92.

The granting or refusal of an application for a continuance is discretionary with the trial court, and not revisable on appeal. There is no error in the record.

Affirmed.

AGENCY-POWER OF ATTORNEY.-A general agent is presumed to have the power to do all that is usual and necessary to accomplish the object for which the agency is created: Austrian v. Springer, 94 Mich. 343; 34 Am. St. Rep. 350. One who buys by an agent buys by himself: Davison v. Holden, 55 Conn. 103; 3 Am. St. Rep. 40. In construing a power of attorney, the intention of the parties, and not the letter, must control: Note to Munger v. Baldridge, 18 Am. St. Rep. 280. The principal authority, in a power of

attorney, includes all mediate powers which are necessary to carry it into effect: Lamy v. Burr, 36 Mo. 85; 88 Am. Dec. 135. A principal will be bound by any contract of his agent in regard to business concerning which he holds him out as his general agent: Williams v. Getty, 31 Pa. St. 461; 72 Am. Dec. 757. As a general authority to do an act includes the power to do everything requisite to its performance, an agent, employed by parol to settle a controversy, may do so, by giving a note in his principal's name, because the giving of the note is an incident which the general authority includes: Piercy v. Hedrick, 2 W. Va. 458; 98 Am. Dec. 774.

APPEAL-CONTINUANCE.-An appellate court will not interfere with an order granting or refusing a continuance, unless there is palpable error, without the correction of which manifest injustice will be wrought. Such orders are discretionary: Sealy v. State, 1 Ga. 213; 44 Am. Dec. 641; McDaniel v. State, 8 Smedes & M. 401; 47 Am. Dec. 93; State v. Hildreth, 9 Ired. 429; 51 Am. Dec. 364.

MAGNETIC ORE Co. v. MARKBURY LUMBER CO.

[104 ALABAMA, 465.]

DEEDS-CONVEYANCE OF GROWING TREES.-Growing trees are such a part of the realty that the title to, or interest in, the same can be conveyed or transferred, as a general rule, only by a written instrument.

DEEDS-CONVEYANCE OF STANDING TIMBER.-If "saw timber," growing on certain lands, is sold and conveyed by deed regularly executed, without condition or limitation, no mention being made as to when the timber is to be cut and removed, the title to it, independently of the land, vests absolutely in the grantee, and is not lost or forfeited in favor of the vendor, or of a subsequent purchaser of the land whose deed expressly reserved such timber, by the fact that the timber was not cut and removed within a reasonable time after it was conveyed.

Bill in equity to determine claims to real estate, and to cancel a deed to timber thereon, filed on December 4, 1893, by the appellant, the Magnetic Ore Company, against the appellee corporation, the Marbury Lumber Company. The complainant appealed from a decree sustaining a demurrer to the bill.

Houghton & Collier, for the appellant.

J. M. Falkner, for the appellee.

466 COLEMAN, J. We presume the present bill was filed under the provisions of an act of the legislature entitled, "An act to compel the determination of claims to real 467 estate in certain cases, and to quiet the title to the same": Acts 1892-93, p. 42. The bill shows that in July, 1881, the Louisville and Nashville Railroad Company, by deed of conveyance regularly executed, sold, and conveyed absolutely the "saw timber" growing on certain lands. No mention is made in the conveyance as to

when, if ever, the "saw timber" was to be cut and removed, but the saw timber is sold and conveyed wholly without condition or limitation. This, the bill avers, is the claim and interest of the defendant. The bill avers, and exhibits show, that the Louisville and Nashville Railroad Company, by deed of conveyance made in October, 1886, sold and conveyed the lands to H. F. De Bardeleben, with the following provision or reservation: "But it is understood and agreed that the timber with right of way to reach same has been sold," etc. In February, 1888, De Bardeleben conveyed to complainant. This is complainant's title.

The prayer of the bill is, that it be decreed that respondent has no interest in the lands, and that the deed of conveyance by the Louisville & Nashville Railroad Company of the "saw timber" to it be canceled. The respondent demurred to the bill, assigning several grounds of demurrer, the last of which was, "that the bill was without equity." Both parties claimed their respective rights and interest from the Louisville and Nashville Railroad Company; the respondent by deed of prior date, notice of which, under the averments of the bill is chargeable to complainant. We regard it as settled law in this state that growing trees are such a part of the realty that the title to, or interest in, the same can be conveyed or transferred only by written instrument. The rule is not universal under all circumstances: See leading cases in 4 American Law Reports of Real Property, 515, with notes by Sharswood and Budd. The two deeds from the Louisville & Nashville Railroad Company, the first to the respondent, and the latter to complainant, convey different and distinct interest of the same realty. The bill does not show that the respondent has, at any time, nor does now claim to own, any interest, except that purchased from and conveyed by the owner thereof. As we understand the averments of the bill, the complainant does not claim that, by its deed in October, 1888, it acquired any legal right or title to the "saw timber." As we understand the bill, the prayer for relief is based upon the proposition that as the deed of conveyance for the "saw timber" 468 did not specify any time within which the timber was to be cut and removed, the law supplied a provision, to the effect that it was to be cut and removed within "a reasonable time," and the respondent having failed to do this within a reasonable time, the right to the saw timber was forfeited, and became the property of complainant. We will consider this proposition further on. If it be true, as held in some decisions, that a deed of conveyance of trees or timber operates

ipso

facto

as a severance of them from the realty, and that the

trees are thereby converted into personalty, the bill is without

equity,

can

as

до

be regards the "saw timber," as, under such a rule, there claim by respondent under this conveyance to any part of the realty. Under this view, the case made by the bill is not within the statute, under which it is filed. It is simply a contention over personal property, which may be fully settled in a court of law. On the other hand, if the trees until cut remain realty, the case made by the bill is, that the respondent is claiming only what it purchased in which complainant has no interest, unless the respondent has forfeited its real estate by a failure to remove it, within a reasonable time, and by the forfeiture the right and title of those who bought and paid for it became vested in the complainant who never purchased it and has no deed of conveyance for it. There ought to be some cogent reasons compelling such a conclusion, or decisions to that effect which have established a rule of property, before we should adopt it as law. The case of Hoit v. Stratton Mills, 54 N. H. 109, 20 Am. Rep. 119, cited by counsel for appellant in support of the doctrine, is an authority to the contrary. In that case, it appears that one Very, in the year 1863, sold the "timber standing" to one Kingsley, stipulating that if Very fail to deliver the timber at a designated place by a certain time, the grantee, his heirs and assigns, might enter the premises and take the timber. The grantor failed to deliver. No time was stipulated within which the grantee or his heirs were to enter and take the timber. In 1868, the timber was conveyed to defendants. In 1870, Very conveyed the land to the plaintiff. In 1871, the defendants cut and carried away some of the timber. The plaintiffs brought an action of trespass quare clausum and de bonis. The court decided that 469 when trees are sold, and no time is fixed for the removal of the timber, the purchaser has a reasonable time within which to enter and cut and remove the same, and if he fail to act within a reasonable time, he thereby forfeited the right to enter the premises, and was liable in an action quare clausum, but it was expressly decided that the defendant was not liable de bonis. The opinion is somewhat lengthy, and the respective rights and remedies of the parties, fully discussed. There is not a line in the opinion in which it is intimated that the purchaser of the timber forfeited his ownership of the trees, or that the grantor or his vendee of the land succeeded to the ownership of the timber upon the failure of the purchaser to enter and remove within a reasonable time. The court held that in such a sale there

was no "foundation for an exception to the general rules of law to make that a conditional conveyance of trees which would be an absolute conveyance of other property." Says the court: "The deed is absolute, the title passed to the grantee, and the defendants are not liable for the value of their own property removed after the expiration of a reasonable time."

The case of Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776, cited also by plaintiff's counsel, goes no further than Hoit v. Stratton, 54 N. H. 109; 20 Am. Rep. 119. It lays down the proposition that when there is a conveyance of land and a reservation of growing trees, and no time is fixed for their removal, a reasonable time only is allowed in which the entry can be made. Bingham, the defendant, having paid the purchase price, was in possession of the land under a valid parol purchase of the timber, but without a deed of conveyance. He had only an equitable title with permission to enter. Heflin purchased the lands, but in his deed of conveyance there was a reservation of the timber sold to Bingham. Heflin sued in ejectment. Bingham disclaimed possession except as to the interest reserved in the deed to Heflin and as to this pleaded "not guilty." One of the vital questions was, whether Bingham had delayed an unreasonable time under his license to enter and cut and remove the timber. If so, the court held that he was a trespasser and plaintiff was entitled to recover. If not, then plaintiff was not entitled to recover on this ground. Had the plaintiff recovered in the ejectment suit, on the 470 ground that defendant had delayed an unreasonable time, that would not necessarily have finally determined that the plaintiff became the owner of the growing timber which had been reserved in the deed to Heflin. Heflin never contracted to purchase, and never purchased, the trees. This part of the realty was never conveyed to him. He had no more right to the trees under his purchase and deed than any other person not a party to the transaction. The right to enter upon the land for the purpose of removing trees may have been lost by an unreasonable delay on the part of the purchaser of the trees, but it would not follow that the purchaser thereby became divested of his property in the trees, or that the vendor became reinvested with the ownership. As was held in the case of Hoit v. Stratton, 54 N. H. 109, 20 Am. Rep. 119, the sale of the timber was not conditional but absolute. The title passed to the purchaser, and we see no reason for giving to words used in a deed of conveyance of trees a different meaning than that given when used in a deed of conveyance of minerals