Bros v. Finch

• Decision Date: 08 August 1907
• Citation: 58 S.E. 690,2 Ga. App. 421
• Parties: McLENDON BROS. v. FINCH. (No. 380.)
• Court: Georgia Court of Appeals

58 S.E. 690

(2 Ga. App. 421)

McLENDON BROS.

v.FINCH. (No. 380.)

Court of Appeals of Georgia.

Aug. 8, 1907.

1. Covenants—Implied Covenants—Sale of Standing Timber.

A conveyance of standing timber for sawmill purposes being a sale of real estate, and not a lease, the provisions of Civ. Code 1895, § 3613, that "in a sale of land there is no implied warranty of title, " are applicable thereto. Where the vendor has given such a conveyance containing no covenant of warranty, and has taken purchase-money notes from the vendee, the latter cannot defend against a suit upon the notes by any plea predicated upon the theory of a breach of an implied covenant of quiet enjoyment under such instrument.

2. Evidence —Parol Evidence Affecting Deed.

While a vendee may recover from his vendor, who includes in a subsequent conveyance to a third person the land already sold (upon the theory of money had and received), such portion of the consideration of the second conveyance as is represented by the land so improperly included (Niles v. Groover, 78 Ga. 461, 3 S. E. 899), it is competent for the vendor to show that the land contained in the first conveyance was inserted in the second conveyance by mutual mistake, and that no part of the consideration of the second conveyance was given therefor.

(a) If a vendor fraudulently makes a second deed of conveyance to the same land, a cause of action ex delicto will arise in favor of the first vendee, if he suffers damage thereby, although his conveyance may have contained nc covenant of warranty.

(b) Such a cause of action, being ex delicto, cannot be set off against a suit upon promissory notes.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, § 1912; vol. 43, Set-Off and Counterclaim, § 32.]

3. Election of Remedies—Right of Election.

A person who has suffered an actionable wrong may pursue any number of consistent concurrent remedies against different persons until he obtains satisfaction from some of them. He is not permitted to pursue inconsistent remedies.

(a) No matter what right the party wronged may have of electing between remedies or of pursuing different defendants for the same cause of action, when he once obtains full satisfaction from one source, his cause of action ends, and he can assert it no further.

(b) If the plaintiff in a suit brought upon a given cause of action accepts a sum of money in full settlement thereof, he cannot thereafter set up the same cause of action against another whom he had the election of suing in the first instance.

(c) A settlement of a cause of action by a partnership estops the individual partners, at least those who participated or acquiesced therein, from afterwards asserting the same cause of action as their own.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 18, Election of Remedies, § 1.]

(Syllabus by the Court)

Error from Superior Court, Paulding County; A. L. Bartleft, Judge.

Action by J. T. Finch against McLendon Bros, on promissory notes. Judgment for plaintiff, and defendants bring error. Affirmed.

R. E. L. Whitworth and J. J. Northcutt, for plaintiffs in error.

A. J. Camp and W.E. Spinks, for defendant in error.

POWELL, J. In March, 1902, Finch, for the consideration of $1,000, sold to Smith & Tomlin all of the timber on certain lots of land, together with sawmill privileges, including right of ingress and egress, but limited the time within which the timber was to be cut and the privileges exercised to two years from date. The instrument of conveyance contained no clause of warranty. As a part of the transaction Smith & Tomlin gave promissory notes for the purchase money of the timber. In September, 1902, Smith & Tomlin transferred their conveyance to McLendon Bros., and Finch took the notes of the latter partnership in lieu of the notes of the former. Afterwards the partnership of McLendon Bros. & Smith, composed of the same persons as the partnership of McLendon Bros, with the addition of Smith, acquired the conveyance; but the record is silent as to just how this was done. In May, 1903, the East & West Railroad Company sought to condemn a right of way through the lands on which the timber stood; and, to avoid the statutory proceedings, Finch, in consideration of $800. executed and delivered to the railroad company a warranty deed to the strip of land sought as a right of way, and made no exception as to the timber. At the time this conveyance was executed McLendon Bros. & Smith were in possession of the timber and were actually engaged in cutting it. The railroad company proceeded to open and grade its right of way, and, in addition to cutting down a considerable quantity of the timber, also impeded the ingress and egress to and from the mill and timber of McLendon Bros. & Smith; and this partnership brought suit against the railroad company for these damages. In settlement of this suit the railroad company paid to McLendon Bros. & Smith $425, and took from them a receipt in full for all damages done by the cutting of the right of way. Subsequently to this transaction Finch sued McLendon Bros, upon the notes which they had given for the timber. In defense to this action several pleas were filed, all of them based upon the fact that Finch had executed the deed to the railroad company without excepting the timber and milling rights previously conveyed. They first set up the transaction as a plea of failure of consideration, asserting that the second conveyance was a violation of the former contract, and that through the violation of this contract the defendants had been damaged in a sum far in excess of the amount due on the notes, by reason of the fact that the railroad company had destroyed their timber and mill rights, and that the consideration of the notes had therefore failed. They also set up the same transaction in the form of a plea of recoupment, and prayed judgment for the excess of the damages above the amount of the notes. They further set up that, in conveying the land to the railroad company, Finch had also conveyed the timber; that the timber conveyed was of the value of $500; that, this amount of money having been received by Finch for timber belonging to defendants, he should in equity and good conscience account to them for it; and they therefore prayed a set-off of this amount. It appeared from the testimony that the railroad company had notice of the timber conveyance at the date on which they bought the right of way, and that no part of the $800 consideration was paid on account of the timber. The defendants objected to this testimony, so far as it went to show that Finch had received no consideration for the timber, on the ground that it contradicted the recitals of the deed from Finch to the railroad company, which asserted that in consideration of $800 Finch conveyed the land and did not except the timber. The court directed a verdict for the plaintiff, and the defendants bring error.

1. The relation between the parties to a conveyance whereby the one sells to the other the timber on land is that of vendor and vendee, and not that of landlord and tenant; and the conveyance is a deed, and not a lease, although the time within which the timber is to be cut and removed is limited to less than five years. Baxter v. Mattox, 106 Ga. 344, 32 S. E. 94; McRae v. Stillwell, 111 Ga. 65, 36 S. E. 604, 55 L. R. A. 513; Morgan v. Perkins, 94 Ga. 353, 21 S. E. 574; Coody v. Gress Lumber Co., 82 Ga. 793, 10 S. E. 218. In cases of landlord and tenant, no estate passes out of tbe landlord further than a mere usufruct, which is not assignable without the landlord's consent. Civ. Code 1895, § 3115. The conveyance of timber, on the other hand, authorizes the grantee, not merely to use it and return it, but to take it away, sell it, and otherwise possess it. The time limit within which the timber must be removed is not a limitation directly upon the estate owned in the timber, but upon the concurrent license of ingress and egress necessary to the use of the timber. These conveyances are further distinguishable from leases, by reason of the fact that they are assignable without the consent of the grantor. McRae v. Stillwell, 111 Ga. 65, 36 S. E. 604, 55 L. R. A. 513; Baxter v. Mattox, 106 Ga. 355, 32 S. E. 94. The conveyance from Finch to Smith & Tomlin, being a deed and not a lease, is within the purview of Civ. Code 1895, § 3613, that "in a sale of land there is no implied warranty of title." It is to be treated as a quitclaim deed. McDonald v. Beall, 55 Ga. 289 (9, 10); Wright v. Shorter, 56 Ga. 72 (4, 5); McDonough v. Martin, 88 Ga. 675, 16 S. E. 59, 18 L. R. A. 343; Nathans v. Arkwright, 66 Ga. 186. Whether it is such a deed as falls within the purview of Civ. Code 1895, § 3609, which provides that a title after acquired by the vendor inures to the benefit of the vendee, is not in...