Corbin v. Durden

Decision Date09 August 1906
Citation126 Ga. 429,55 S.E. 30
PartiesCORBIN et al. v. DURDEN.
CourtGeorgia Supreme Court

Frauds, Statute of—Purchase of Growing Timber—Contract in Writing.

A contract of sale of growing treeg concerns an interest in realty, and under Civ. Code 1895, § 2693 (4), must be in writing. A receipt in these words, "Received of A. Corbin $50.00, as part payment on Dekle and Boyd tracts of timber, " signed by the vendor, does not comply with the statute, because of the omission of the purchase price. Nor will partial payment of the purchase price, unaccompanied by possession, except the case from the statute.

[Ed. Note.—For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, §§ 117, 238.] (Syllabus by the Court.)

Error from Superior Court, Emanuel County; B. T. Rawlins, Judge.

Action by J. B. R. Durden against Ark Corbin and S. R. Williamson. Judgment for plaintiff, and defendants bring error. Affirmed.

Williams & Bradley, for plaintiff in error.

Saffold & Larsen, for defendants in error.

EVANS, J. B. R. Durden, alleging himself to be the owner of a described tract of land, sought to enjoin Ark Corbin and S. R. Williamson from cutting and removing the timber thereon. The damage to the freehold resulting from cutting the timber was declared in the petition to be Irreparable, for the reasons given; and the defendants were alleged to be insolvent In response to the rule nisi, the defendants offered their sworn answer, wherein they admitted that plaintiff was the owner of the land, but averred that he sold to Corbin all the pine timber on the land described in the petition which was suitable for sawmill purposes, at and for the sum of $500, and gave to Corbin the following receipt: "Rec'd of A. Corbin $50.00 dollars as part payment on Dekle and Boyd tracts of timber. This 11th day of Sept., 1905. [Signed] B. R. Durden." The defendants further averred that Corbin had tendered to plaintiff, before entering on the land for the purpose of cutting the timber, the balance of the agreed purchase price. That portion of the pleadings alleging the insolvency of the defendants, andthat the damages which would result to the land from cutting the timber would be irreparable, was denied. The plaintiff demurred to the defendants' answer, because the sale was by parol and the receipt was insufficient to take the case out of the statute of frauds. The court granted an injunction, and the defendants excepted.

The interlocutory judgment granting an injunction was based on the pleadings, no other evidence having been submitted. Inasmuch as the plaintiff affirmed, and the defendants denied, the insolvency of the defendants and that the damages would be irreparable, the court, without abusing its discretion, might well decide these issues with the prevailing party. With these issues eliminated, the correctness of the judgment complained of turns on the validity and effect of the parol sale of the timber, the vender receiving part of the purchase money and giving his receipt therefor. It is no longer an open question in this state that trees...

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13 cases
  • Brown v. Atlantic & B. Ry. Co.
    • United States
    • Georgia Supreme Court
    • 13 Agosto 1906
  • Peacock v. Horne
    • United States
    • Georgia Supreme Court
    • 18 Febrero 1925
    ... ... Empire Lumber Co., 91 Ga. 651, 17 ... S.E. 1020, 44 Am.St.Rep. 58; Pritchett v. Davis, 101 ... Ga. 236, 28 S.E. 666, 65 Am.St.Rep. 298; Corbin v ... Durden, 126 Ga. 429, 55 S.E. 30; Baucom v. Pioneer ... Land Co., 148 Ga. 633, 97 S.E. 671. This being so, the ... contract of sale must ... ...
  • Smith v. Cox
    • United States
    • Georgia Supreme Court
    • 6 Mayo 1981
    ...possession will amount to such part performance as to take the contract out of the statute (Wimberly v. Bryan, 55 Ga. 198); Corbin v. Durden, 126 Ga. 429, 55 S.E. 30, and to authorize the specific performance of a parol contract. Code, § 37-802." Harris v. Underwood, 208 Ga. 247, 249, 66 S.......
  • Clarke Bros. v. McNatt
    • United States
    • Georgia Supreme Court
    • 13 Mayo 1909
    ... ... conditional sale, and some of a bailment. A contract of sale ... of growing trees concerns an interest in realty. Corbin ... v. Durden, 126 Ga. 429, 55 S.E. 30. An agreement for the ... sale of property attached to the soil, but which is to be ... severed therefrom ... ...
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