164 Ga. 371 | Ga. | 1927
(After stating the foregoing facts.)
H. W. Grant, the husband of plaintiff, on January 23, 1909, contracted to sell to N. B. Haymes a described tract of land, and executed and delivered to him on said date his bond for title thereto, which contains this provision: “There is a sand bank on the property to be conveyed, said sand bank being on the west side of the road extending from Chattanooga to Blowing Springs, and the right is reserved to remove all of the said sand in said bank up to the north boundary line of the property to be conveyed, and as far west as sand may extend, together with the right to remove timber growing over said sand bank, so as to the better enable him to get the sand.” On January 23, 1914, Elizabeth Post Grant, the wife of H. W. Grant, as executrix of and sole legatee under his will, in pursuance of said bond for title conveyed said land to Haymes, and in her deed of conveyance made the same reservation of the sand in said sand bank as that contained in the bond for title from her husband to said vendee. It is insisted by counsel for Haymes that the above reservation is a mere license from Haymes tli Grant, to remove the sand from this land, and that it is a personal privilege given to Grant, and is therefore not
It is competent for one to convey the fee in land to another and reserve the right to sand in a sand bank thereon. In Holmes v. Martin, 10 Ga. 503, 506, this court said: “It is competent for ,one to convey the fee to another and reserve the right of mining, of common, of waterway, with the power of entry, for the purpose of making, opening, or cleansing watercourses, or the right of entry for making reservoirs, or of planting ladders for the repair of adjoining houses, or the right of sporting.” It is always competent for the vendor to convey the fee in land to the vendee, and to except therefrom some part of the land conveyed, or to reserve to himself, his heirs and assigns, certain rights in the land. Strictly speaking, a reservation is that which issues from or is an incident of a thing granted, and not a part of it. It is something newly created out of the granted premises. It is a clause in a deed whereby the grantor reserves some new thing to himself, issuing out of the thing granted and not in esse before. It differs from an exception, which is always a part of the thing granted, and of the thing in being at the time of the conveyance. The office of an exception is to take something out of the thing granted, that would otherwise pass. 18 C. J. 340, § 339, notes 95 and 96, and decisions therein cited. This distinction between these terms has been generally recognized. “The terms exception and reserva
But it is insisted that the right or title to this sand terminated with the death of the grantor. This contention is based upon two theories. One is that the reservation was a mere license, and that the death of either party works a revocation of the license. 25 Cyc. 651 (d). The other is that where the reservation does not contain words of inheritance, it exists only for the life' of the grantor. This undoubtedly is the rule where the common law prevails. By the common law, a conveyance to a vendee, without words of inheritance, created in the vendee only a life-estate, no matter how clear it was that the vendee intended to convey an estate in fee simple. Applying this rule, the courts have held that a reservation in a conveyance operates by way of an implied grant, and in the absence of words of inheritance, only an estate for the grantor’s life is created. 3 Washburn on Real Property (5th ed.), 465; Lathrop v. Elsner, 93 Mich. 599 (53 N. W. 791); Marvin v. Brewster Iron Mining Co., 55 N. Y. 538 (14 Am. R. 322); Sloan v. Lawrence Furnace Co., 29 Ohio St. 568; Whitaker v. Brown, 46 Pa. 197; Foster v. Runk, 109 Pa. 291 (58 Am. R. 720);
So whether the provision in the bond for title from Grant to Haymes, and in the deed from the executrix of the former to the latter, constitutes a strict reservation or an exception, makes no difference in this case. We have seen that a reservation often amounts to an exception, and the word ““reservation” is often used in the sense of the word ““exception.” It can with much plausibility be maintained that the provision in these instruments created properly an exception, and not á reservation. However, as we have just stated, this makes no difference in the present case. If the language of this provision in these instruments, creates a reservation, we have seen that a reservation is a grant by implication, and under our statute will convey an estate in
While we hold that under this reservation or exception the title to this sand remained in the grantor under his bond for title, and passed to his heirs if he died intestate, or to his devisees if he died testate, we do not mean that the grantor, his heirs or devisees, had an unlimited time in which to remove the sand in this sand bank. The language in which this reservation or exception is couched clearly indicates that the grantor was to remove all of the sand in said sand bank. The language is: “The right is reserved to remove all of the said sand in said sand bank up to the north boundary line of the property to be conveyed, and as far west as sand may extend, together with the right to remove timber growing over said sand bank, so as to the better enable” the grantor “to get the sand.” Clearly it was in the contemplation of the parties that the grantor or those claiming under him should remove the sand from this sand bank. No time limit is fixed by the bond for title, or the deed from the' executor of the grantor, in which the sand was to be removed. In these circumstances we think the sand should be removed within a reasonable time, and that upon the failure of the grantor, or those claiming under him, to remove it within a reasonable time, the right or title to the sand would be divested. In Morgan v. Perkins, 94 Ga. 353, 355 (21 S. E. 574), it was held that “The timber being realty, the purchaser acquires by the written conveyance an interest in the land, subject to be divested if he fails to remove the timber within the time limited by the conveyance. This is a limitation upon the estate granted; and if the timber is not removed within the time prescribed in the limitation, the estate terminates.” In Perkins Manufacturing Co. v. Williams, 98 Ga. 388 (25 S. E. 556), it was held that an instrument in the form of a deed, conveying
But it is insisted by counsel for the defendant that the plaintiff does not show, under the allegations of the petitioii, that she has title to this sand, and that for this reason her petition sets forth no cause of action. This contention is based, first, upon the ground that this sand is not real estate, and that for this reason the plaintiff can not recover as an heir at law of the obligor in the bond for title. This court has held that standing timber is not personalty but realty, and that a sale of growing trees is a
Applying the above principles, we think that the court erred in sustaining the demurrer to the petition, and in dismissing the same. Judgment reversed.