58 Ga. App. 532 | Ga. Ct. App. | 1938
The petition as amended presents a situation where the owner of land with timber growing thereon executed and delivered to the plaintiff a deed conveying such land to secure a loan, and thereafter sold to another person the right to cut timber from such land, and where such other person, after cutting and removing the timber, sold it to the defendant before the plaintiff
The petition as amended alleges that the plaintiff had title to the sawed timber, describes it sufficiently in the absence of a special demurrer, states its value, that the defendant was in possession of the timber, and that, although demand had been made therefor, the defendant refused to surrender the sawed timber. These are sufficient allegations in an action of trover, and the prayer of the petition is not inconsistent with such an action. Bank of Sparta v. Butts, 1 Ga. App. 771 (57 S. E. 1061); Milltown Lumber Co. v. Carter, 5 Ga. App. 344, 348 (63 S. E. 270); American Railway Express Co. v. Willis, 28 Ga. App. 430 (111 S. E. 580). The petition, however, by specific allegations shows that the only title held by the plaintiff at the time the timber was cut, removed, and sold was that conveyed to it in a security deed, and as this title did not constitute the plaintiff the “true owner” as contemplated by the law, the petition is to that extent deficient.
As between the grantor and the grantee in a security deed, the grantor remaining in peaceful possession is the true owner. Let us examine that question with particular reference to the right of the grantor to cut timber from land conveyed by security deed to another. In England the mere cutting of timber, in a situation analogous to the present ease, was waste; but in this country it has not yet become so regarded. In Small v. Slocumb, 112 Ga. 279 (37 S. E. 481, 53 L. R. A. 131, 81 Am. St. R. 50), it was held: “The vendor of land who retains title thereto for the purpose of
In Washington Loan &c. Co. v. Washington Exchange Bank, 165 Ga. 503, 509 (141 S. E. 405), referring to the ruling in Small v. Slocumb, supra, that “The vendor of land who retains the title thereto for the purpose of securing the payment of the purchase-money can not by injunction prevent the vendee from clearing the land and cutting the timber thereon, unless such acts impair the value of the vendor’s security,” the court said: “And we think that this same rule would apply in a case where the owner of land
This court has uniformly held in other eases that the holder of a bond for title, in possession of the land described in the reconveyance bond, could cut and sell timber, although, as already shown, the right is subject to the qualification that injunction will lie to restrain a cutting which impairs the value of the vendor’s security. 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.
We have at some length set forth the rights of a vendee in a bond for title, and a grantor in a security deed, as to cutting timber, because the present case is somewhat novel. The grantor in a security deed bears the same relation to the grantee as does the vendee in a bond for title to the vendor. Mills Lumber Co. v. Milam, 57 Ga. App. 211, 216 (194 S. E. 211). From the authorities it must follow that where, in a case like the present, the grantee makes no effort to enjoin the cutting of timber from the conveyed land, the grantor, being in peaceful possession, may cut the timber therefrom, and where no contractual relation is alleged between the grantee and the purchaser of timber so cut, and no intent to defraud or collusion is alleged, as to impairing the value of the security, the purchaser, who in good faith purchases timber from one who, under a contract with the grantor, cuts and removes the timber from the lands conveyed, is not liable to the holder of the legal title in a security deed, because the latter is not in contemplation of law the "true owner” of the land conveyed as security for a loan to the grantor, or of timber which is cut therefrom. The petition, while alleging generally that the plaintiff holds title to the cut timber, shows by a specific allegation that the title claimed is only that held as a grantee in a security deed; and as the plaintiff is not shown to have been the true owner or in actual possession before acquiring a warranty deed, the timber being in the
All of the cases cited by counsel for the plaintiff have had the court’s careful and painstaking consideration, but they deal with the right of a title holder to recover fixtures which had been removed from land, and are not in point. A different rule of law applies as to the cutting of timber from land conveyed as security for a loan, the right of the grantor being determined by a consideration of whether or not such cutting impairs the grantee’s security. Counsel for the plaintiff contend that the acquisition of title under the warranty deed, pursuant to sale of the land under the power granted in the security deed, qualified the plaintiff as the “true owner” in that such title related to the date of the security deed. We know of no law which sustains this contention in a purported trover action for timber cut from land conveyed by a security deed, and to uphold the contention would be to attempt to set at naught the principles enunciated in the decisions we have reviewed in the foregoing opinion. These decisions establish the right of a vendee in a bond for title or a grantor in a security deed as of the time the timber is cut, and consequently the right of a purchaser of timber so cut. The grantor, being" in peaceful possession and the true owner, continues to be so until evicted by legal process or until a warranty deed, as in the present case, is acquired by the original grantee; and in the meantime the act of the grantor in selling the right to cut timber from the land, the act of the intermediate partjr, Ross, in cutting and removing the timber, and the act of the defendant in purchasing the timber from Ross, are all protected in law under the circumstances set forth in the petition as amended.
Judgment affirmed.