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MAY 16, 1984




This appeal from the Chancery Court of Newton County involves a sale and purchase of timber. The appeal questions evolve around the securing of a timber deed and the purchase of timber without securing deeds from all the owners. As usual a consideration of the appeal requires a brief discussion of the facts. These are largely undisputed, except for the amount of timber and its value. In relating the facts it usually is well to begin at the beginning.

One Clifton Gardner in 1942 purchased 100 acres of land approximately seven miles north of Decatur in Newton County. Gardner died intestate in 1952 leaving as his surviving heirs his wife Irene and seven children.

 After Gardner's death and prior to the proceeding involved in this case, small tracts of the property had been deeded to some of the heirs for home places, leaving 93 1/2 acres involved in this cause.

 Gardner's widow, Irene Gardner, was 74 years of age at the time of the occurrences leading to this litigation. She lived in the home place, by the side of the country road, which house was on the subject property and the home in which Mrs. Gardner reared and provided for her seven children. In February 1978 and for some years prior thereto, appellee Walter Gardner, one of the sons, lived in a house just across the road from his mother. On and before said date, one of the daughters, Valean Welch lived in a house next door to her mother. For a period of time prior to February 1978, two men, namely Murray H. Gibson and Jimmy Adams, had been negotiating with Irene Gardner to purchase the saw-log timber from the place. This timber covered from 65 to 70 acres of the total acreage.

 On February 6, 1978, Gibson and Adams secured from Irene Gardner a deed to the timber. The deed, typed by the two purchasers, did not have a place for

 an acknowledgment. Irene Gardner called her daughter Valean and requested that she come and witness the deed. Valean did so, after which the deed was taken across the street to be witnessed by the wife of Walter Gardner. The latter was away from home several days on business.

 The instrument secured by Gardner and Adams was then taken to the duly authorized officials of appellant, Scotch Plywood Company of Mississippi. This company bought the timber from Gibson and Adams by warranty deed dated February 15, 1978. Gibson and Adams had paid Irene Gardner $16,000 for the deed from her. Appellant paid Gibson and Adams the sum of $27,000.

 The daughter Valean Welch testified regarding her knowledge of the instrument executed by her mother and admitted that she knew the instrument purported to convey all the timber on the Gardner tract for $16,000. She witnessed her mother receiving $8,000 in cash, and a check for $8,000 in consideration of the timber conveyance. She lived in the same house during the entire time from the execution of the conveyance until the timber was cut.

 Walter Gardner, an educated man engaged in the insurance business, stated he was away from home the day his mother executed the timber instrument, but learned of it upon his return. He did nothing. He testified that during the weeks appellant was cutting the timber, the vehicles had to use his driveway. He discussed this situation with appellant's employees, and was assured that damages to the property around his home would be repaired. Gardner, in effect, witnessed the cutting of the entire tract of timber by appellant and took no action to stop it or in any way interfere with its being cut. He further testified that prior to filing the litigation now before us, that the money received by his mother from the sale of the timber was used to renovate her house.

 Both appellees and appellant presented an expert in cruising timber. Appellees employed a graduate forester to examine the stumpage left by the timber cutting and he gave a professional estimate as to the amount cut and its value. Appellant introduced one of its full-time employees, who was a junior college graduate and had received on the job training as a timber cruiser. He testified as to his examination of the timber prior to it being purchased by his company.

 Needless to say, as usually happens when experts testify for different parties, the amounts and prices in this case varied substantially between the two experts.

 On December 20, 1980, the seven children of Clifton and Irene Gardner, by Walter Gardner, filed suit in the Chancery Court of Newton County naming as defendants the appellant Scotch Plywood Company of Mississippi and the two individuals, Murray Gibson and Jimmy Adams. The suit was in an effort to recover the value of the childrens' interest in the timber. All three defendants appeared by solicitors and filed pleadings. Appellant, Scotch filed a cross bill against fellow defendants Gibson and Adams requesting that in the event a decree was rendered against the company, that it should be entitled to a decree against the two individuals under the terms of the warranty deed given by them to the company.

 After a hearing of several days and a consideration of the case, the chancellor found that the seven appellees were entitled to recover the value of their interest in the timber that was cut as of the date of the purchase by appellant. We shall not discuss how he arrived at his final amount, but we are required to consider, and we now hold, that appellees presented sufficient proof for the chancellor to arrive at his value for the timber. He found that the value at the time of cutting was $67,780.32. This was a total value, including that of Irene Gardner, the mother. The chancellor then reduced the total value by one/eighth and rendered a decree for 7/8 of the total value to ...

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