Phillips v. Taylor

Bosrp, 'C. J., delivered the opinion of the 'Court. The question on this appeal is whether a hill will lie at the suit of persons who cut and removed timber from a tract of woodland under contract with one whom they took to be sole owner, to require an interpleader between that one and .another, who later claimed a half interest in the land, and timber, in order to settle the rights of the claimants to half the proceeds of the contract in the plaintiffs’ hands. Isabella Taylor, since deceased, received by deed in 1896 two parcels of land in Wicomico County separately described in the deed as one of fifty acres and one of eighteen acres. The fifty acre tract had long been developed as a farm, and had been lived on and farmed by Isabella Taylor even before tbe deed of 1896, and she lived on it np to her death.

Her son, Jacob lb Taylor, lived on it with her and farmed it for a year or more before her death. The other parcel was a woodland tract of eighteen acres about half or three-quarters of a mile away from the first, and entirely separated from it. By her will Isabella Taylor devised to her son, Jacob E. Taylor, a tract “containing about fifty acres, more or less,” which she described as “being the same plain where I and my husband, James Taylor, lived during his lifetime and .at the time of his death,” and located generally in terms similar to those used in the deed describing the fifty acre tract alone. The will made no mention of another parcel of land, and it contained no residuary clause.

The son, Jacob E. Taylor, in 1920, made a contract with the appellees, who constituted a firm known as P. D'. Phillips & Brother, to cut. and carry off timber from the eighteen ¹⁶⁰ acre tract; and in the next two years that was done. The contract price wa's $2,500, and of that $100 was paid at the time of mating the contract, and for the remaining $2,400 a note, payable one year from date, and containing authority for the entry of judgment by confession for the amount, was given by the appellants to Taylor. It appears from testimony taken that some months later, and just after the cutting of the timber had begun, an attorney representing Mrs. Ross, under a formal power of attorney giving him wide powers, came upon the land and gave the appellants notice of a claim by Mrs. Ross of co-ownership in the tract, on the theory that the will of Isabella Taylor did not dispose of it and that it therefore descended to the two children as co-heirs.

The attorney tallied of selling Mrs. Ross’ interest to the appellants, and according to the preponderance of the testimony, stated that Mrs.. Ross would claim half of the proceeds of the contract, and warned appellants against paying more than half to Taylor. On December 31st, 1921, the note to Taylor alone having matured, and payment having been refused, judgment by' confession was entered against the appellants by Taylor, under the authority contained in the note. The appellants were advised by 'their counsel not to make payment to Taylor alone until the rights of the two claimants were determined, unless Taylor would give a bond to secure the appellants' against loss on account of Mrs. Ross’ claim.

Payment upon this condition w'as offered, but was declined. Thereupon, the pre'sent bill, to compel Taylor and Mrs. Ross to. interplead, was filed, and the money was paid into court. Two years later a suit was filed by Mrs. Ross against 'tibe appellants for trespass. The court below by its final decree dismissed the bill.

In this, we think, there was error. In the contract Taylor clearly dealt with the land and timber as sole owner, selling “all the growing timber and wood of every kind and description” upon the tract of land described; and the testimony shows that the amount to be paid represented the value of the whole. There is addi ¹⁶¹ tional testimony that Taylor represented that he was sole owner. And although the contract did not of itself affect the interests of Mrs. Ross, if she had any, our conclusion is that after her attorney, acting under the ample authority contained in his power of attorney, went upon the land during the cutting of the timber and announced that his client would lay claim to one-half the proceeds of the contract, as we find from the evidence he did, thus inducing and justifying the appellants in proceeding with the cutting and removal of the timber upon the assumption that there was no objection to be made on the ground that Taylor alone made the sale, or that the cutting amounted to waste and destruction of the cotenant’s interest, it was too1 late for Mrs. Ross to insist upon rights in opposition to that contract.

Carmine v. Brown, 104 Md. 198, 204 . Therefore, the appellants were holders of a fund representing the whole purchase price of timber, and were confronted with conflicting claims to ownership of one-half of it. According to the rules adopted in some of the eases elsewhere, there might perhaps, he an objection made to the hill on the ground of the lack of privity in the claimants, when one claims as devisee and the other as heir. Pomeroy on Equity Jurisprudence, sec. 1324; Fogg v. Goode, 78 Fla. 138 .

But such a rigid requirement of privity has not been insisted upon in the Maryland decisions, and it has now been considerably relaxed in other jurisdictions. See review of eases in 30 Yale Law Journal, 814; note L. R. A. 1918D, 1172. The ease at bar is closely similar to that of Zihlman v. Zihlman, 75 Md. 372 , in which a, corporation had made a contract with the sole patentee of a device for its use upon payment of all royalties to him, and was confronted with a claim of title to a half interest in a brother of the patentee arising out of an alleged joint working out of the device, and joint ownership by an agreement antecedent to the taking out of the patent. The corporation filed a bill for an interpleader.

There were, thus, conflicting claims to the ex ¹⁶² tent of one-half of a single obligation; and Judge Robinson, for this Court, in affirming the allowance of the bill, said the case Was a plain one. And we think any difference between that ease and this one in respect to the privity of 'the parties is immaterial. Boyle v. Manion, 74 Miss. 572 . And the decision in Zihlman v. Zihlman, supra, disposes of any question which might be thought to arise out of the difference in the amounts claimed by Taylor and Mrs. Ross.

It i's no obstacle to the allowance of the bill. North Pacific Lumber Co. v. Lang,