57 Ga. App. 211 | Ga. Ct. App. | 1938
This suit was transferred to this -court by the Supreme Court. C. M. Milam, trustee, the grantee in a security deed, filed a suit for injunction, damages, and accounting against Etowah Development Company, the grantor, and Mills Lumber Company. The judge granted an injunction, and the suit was thereafter amended, and damages were prayed for in a named sum. Error is assigned by Mills Lumber Company on the overruling of a general demurrer. The petition alleged, in substance: On April 16, 1929, Etowah Development Company conveyed to J. A. Yaughan all the saw timber, including the right to cut and remove the same, on certain described lands in Bartow and Cherokee Counties. This timber contract contained a provision that Yaughan, his heirs and assigns, “shall have three years from the date hereof in which to cut the timber hereby conveyed; and if, at the expiration of said time, said' second party [Yaughan] his heirs and assigns, desires any additional time in which to cut timber, first party [Etowah Development Company] hereby extends said time 'for a period of one year from said three-year period upon the payment to first party by second party, his heirs and assigns, of one hundred
The plaintiff alleged that he never assented to any extension of the time for cutting the timber on said lands, and any such extension was illegal and in violation of its rights; that since April 16, 1934, Mills Lumber Company, because of the purported extension agreement executed by Etowah Development Company, entered on said lands and was illegally cutting and removing said timber; that the value of the property was being decreased by the removal of the timber, and the value thereof would be insufficient to secure the loan thereon made by the plaintiff. By amendment it was alleged that since filing the suit the plaintiff had sold the land under the power of sale contained in the security deed, for a named amount which was insufficient to pay the loan, and that the timber cut and removed by Mills Lumber Company since April 16, 1934, under the alleged illegal extension agreement by
In Sutton v. Gray Lumber Co., 3 Ga. App. 377 (60 S. E. 2), the headnote is as follows: “In January, 1882, S. conveyed to B. ‘all the pine timber suitable for saw logs of every size and dimension’ on a given lot of land, ‘provided the same be cut within five years from date.’ In December, 1882, S. conveyed to P. the land lot on which the said timber was situated, — the deed containing this clause following the description of the land: ‘The sawmill timber heretofore sold to Henry Banks excepted.’ Held, that the timber on the described land lot, not cut within the five years, did not revert, at the expiration of the time limited, to S. or his heirs, but became the property of the then owner of the land.” It was said in the opinion: “This conveyance was not
The plaintiff in error contends that a grantor in a security deed has the right and may except or reserve, either expressly or by implication, the timber on the land conveyed, in which case the grantee has no right therein. As to an express reservation we agree. In Johnson v. King Lumber Co., 39 Ga. App. 280 (147 S. E. 142), such an express reservation was made. The grantor in that case “reserved the right to cut and remove ai any lime [italics ours] a part or all of the timber now on the lands . . described.” A reservation for a limited time does not afford to the grantor, after that time, any right to cut and remove the timber. In Levis v. Parrott Lumber Co., 119 Ga. 476 (46 S. E. 647), it was held: “Where A grants to B the sawmill and turpentine privileges on a given lot of land, but also provides that ‘all timber remaining [thereon] to revert’ to A after a period named, and afterwards, before the period expires, conveys the lot to C, with this provision following the description of the land: ‘all timber on the above [land] sold prior to this day reserved,’ the trees not removed by B within the time limited will be the property of A, and not of C.” The express language of the conveyance there involved reserved in the grantor the title to the timber on the land. In Shaw v. Henderson Lumber Co., 141 Ga. 47 (80 S. E. 322), it was held: “A deed conveying a certain described tract of land contained the following provision: ‘pine timber for sawmill purposes 14 inches 2 feet above the ground and up, and the turpentine privileges also . . excepted from this sale.’ Held, that the title to such timber did not pass to the grantee, but remained in the grantor.” In that case the instrument being considered expressly reserved the title to certain timber in the grantee. There is no question that under the conveyance of timber by Etowah Development Company to Yaughan all of Yaughan’s rights there
The suit in the present ease is expressly predicated upon the proposition that the acts of Etowah Development Company and its grantee, Mills Lumber Company, have impaired the value of the security held by the plaintiff. The petition as amended prays that plaintiff have "a general judgment against defendants, [Etowah Development Company and Mills Lumber Company] in the sum of $15,000 or such sum as the court may find the defendants damaged petitioner by depreciating the value of petitioner’s security by cutting of timber from said premises since April 16,
“If a warehouseman, who receives cotton for storage, knows of a superior mortgage lien thereon, and sells and secretes the cotton and thus puts it beyond the power of the mortgagee to enforce this lien, he thereby commits a tort, and the mortgagee has a right of action against such warehouseman for such damages as he sustains.” Blanchard v. Farmers State Bank, 158 Ga. 780 (124 S. E. 695). See also Todd v. Hurst Supply Co., 17 Ga. App. 98 (86 S. E. 255); Peoples Bank of Richland v. Farmers State Bank, 32 Ga. App. 42 (122 S. E. 636). In Streelman v. Turner, 32 Ga. App. 733 (124 S. E. 549), it was said: “A third person, who, with knowledge of the existence of such a [landlord’s] ■ lien wrongfully and fraudulently [italics ours] interferes for the purpose of impairing and destroying the value of the lien of the landlord by purchasing the property from the tenant and afterwards disposing of it, is liable to the landlord for any loss or damage sustained by reason of such wrongful interference.” See also Benton v. McCord, 96 Ga. 393 (23 S. E. 392). In DeVaughn v. Harris, 103 Ga. 102 (29 S. E. 613), it was held that one may not, though to collect his own debt, take personal property in possession of the mortgagor when such person has actual knowledge of the existence of a prior lien on the property, and dispose of it to his own use. The underlying principle of these decisions is that one who, in attempting to preserve his own rights, fraudulently deprives another of a right will be liable to such person. DeVaughn v. Harris, supra. A purchaser of timber, in good faith, from one who is in peaceable possession and control of land, who cuts and removes such timber, will not be liable to the holder of the legal title to such land under a deed to
Judgment reversed.