165 Ga. 516 | Ga. | 1928
Lead Opinion
The vendee in a security deed can by injunction prevent one claiming under the vendor therein, by right or title acquired subsequently to the execution and record of such deed, from cutting for sawmill purposes timber growing upon the land conveyed by such instrument, when the cutting of the timber impairs the value of the vendee’s security. Small v. Slocumb, 112 Ga. 279 (37 S. E. 481, 53 L. R. A. 130, 81 Am. St. R. 50); Bitting v. Chattooga County Bank, 159 Ga. 78 (124 S. E. 899); Ponder v. Mutual Benefit Life Insurance Co., ante, 366. It is unnecessary in this case to decide whether the vendor in a security
Under conflicting evidence upon the question whether the cutting of the timber lessened the vendee’s security, the court below did not err in granting an injunction restraining the defendant from cutting and removing the timber upon the land embraced in the security deed.
Judgment affirmed.
Dissenting Opinion
dissenting. As appears from the record in this case, E. L. Williamson executed and delivered to the Mutual Benefit Life Insurance Company, in consideration of the sum of $2800, a described tract of land containing 313-3/4 acres, to secure a loan of $2800. The insurance company gave to Williamson a bond to reconvey title to the land upon payment of the debt. Williamson made a contract with Darby to sell a part of the timber on a described portion of this tract of land, for $250; and Darby was proceeding to cut and carry away this timber when the insurance company made application for an injunction forbidding the cutting of said timber, and asked judgment against Darby for $300 as damages. Upon the hearing the insurance company introduced, in addition to the verified petition, only the security deed. The defendant introduced his verified answer, and testimony of witnesses to the effect that Williamson, the holder of the bond for title, is the owner of the equitable title and is in possession of the 313-acre tract of land; that he sold only a small part of the timber on the land to Darby for $250; that should the defendant cut the timber there would then remain on the land sufficient timber for all uses and purposes; that the debt of $2800 was not due, nor was even the last interest installment due; that the holder of the bond for title was recently offered $4800 for the land held as security, and it is well worth that amount; that the land is more valuable for farm purposes than otherwise, and the cutting and removing of the timber which was sold to the defendant will not lessen the value of the same; that the timber sold is of a character that is of low value, being short-leaf, second-growth pine. Under
The Court of Appeals, in Guin v. Hilton & Dodge Lumber Co., 6 Ga. App. 484 (65 S. E. 330), Buck v. Duvall, 11 Ga. App. 853 (76 S. E. 1053), Scott v. Ward, 23 Ga. App. 416, 420 (98 S. E. 412), Colquitt County Land Co. v. Rowell, 30 Ga. App. 738 (119 S. E. 223), and Boswell v. Ivie, 31 Ga. App. 807 (122 S. E. 97), has uniformly held that the holder of a bond for title, in possession of the land described in the reconveyance bond, could cut and sell timber. Undoubtedly, as a general rule, injunction will lie when the cutting of the timber impairs the value of the vendee’s security. Small v. Slocumb, 112 Ga. 279 (37 S. E. 481, 53 L. R. A. 130, 81 Am. St. R. 50); Bitting v. Chattooga County Bank, 159 Ga. 78 (124 S. E. 899). But there is a variation of the rule where a bond for title is given, which has been recognized not only in this State but also in numerous other jurisdictions. In the case at bar the evidence to the effect that the value of the vendee’s security will not be impaired, so as to jeopardize the collection of his debt, is absolutely uncontradicted. According to the evidence the removal of the second-growth, short-leaf pine trees will render the place more valuable than before; for it is testified that the land is good land, and is far more suitable for cultivation than for timber of the character now growing thereon. It was held in Small v. Slocumb, supra, “To cut timber and clear land so as to make arable what was before woodland is not, in this State, waste unless the value of the land is thereby impaired.” While the precise question has never been directly decided by this court, still, in Broxton v. Phillips, 96 Ga. 792 (22 S. E. 945), it was held in effect that the vendee in possession under a bond for title is to all intents and purposes the owner of the land until the vendor in some manner prescribed by law recovers possession of the land. In that case this court, speaking through Mr. Justice Atkinson, said: “Where the tenant undertakes to acknowledge a tenancy both under the vendor and the vendee, and distress warrants are issued at the
The fact that injunction is a proper remedy only when the holder of the legal title can show that the value of his security is being depreciated is strong proof that the law does not contemplate that he shall have any interest in the land other than as security for the payment of his debt, and that with this exception the holder of the bond for title is in equity .the full and complete owner of the land so far as its management and control is concerned. While at common law cutting of timber was waste, in this country the clearing of arable land, which now entails considerable expense, frequently adds to the value of the property; and therefore, as held in Small v. Slocumb, supra, it is not necessarily waste. It is a matter of common knowledge and well-nigh universal practice in this State that transactions in realty containing valuable timber or mineral deposits are made with the understanding, either expressly stated or tacitly so understood, that the purchaser will in a large measure be enabled to pay the purchase-price by the conversion of these natural resources into money.