Coody v. Gress Lumber Co.

• Decision Date: 08 July 1889
• Citation: 10 S.E. 218,82 Ga. 793
• Parties: COODY v. GRESS LUMBER Co.
• Court: Georgia Supreme Court

10 S.E. 218

82 Ga. 793

COODY v. GRESS LUMBER Co.

Supreme Court of Georgia

July 8, 1889^[1]

Error from superior court, Dodge county; KIBBEE, Judge.

The grounds of the motion for a new trial were added as follows (1-3) The verdict is contrary to law and evidence. (4) Error in admitting in evidence the contract purporting to have been made between McAuthur & Griffin and A. B. Steele & Co., there being no witness to the same, and no description of the lot of land in dispute, and said paper purporting to be a lease of lands and timber for a term of 20 years. (5) Error in admitting in evidence what purported to be a lease from Thomas Dunn to John W. Griffin, there being no witness to said paper. (6) Error in admitting in evidence what purports to be a bond for title from Steele to Gress, without proof of its execution by the subscribing witnesses. (7) Error in refusing to allow the plaintiff, when on the stand as a witness, to answer the following question: "How much was the lot of land damaged by the cutting of the timber?" The court permitted the witness to show how much he was damaged by reason of the cutting of the timber, but declined to allow evidence to be submitted to show that defendant had sustained other damage than was charged in his declaration. (8) Error in charging: A lease for a term of years is not a freehold estate, but a chattel, and may be made to commence in the future; and it is assignable. The assignee has the same right as the assignor. (9) If Coody purchased from Dunn the lot of land in dispute with the lease outstanding, he bought no less, and could buy no more, than the land owned by Dunn at the time of purchase, and if the timber had been previously leased to other parties, he took subject to the incumbrances of the leasehold interest; and this is true notwithstanding he may have bought without notice of the lease. (10) Error in charging: The question of notice has nothing to do with the case. If Griffin leased from Dunn previous to the sale by Dunn to Coody, and defendant acquired the title from Dunn by proper assignment through various changes down to it, plaintiff could not recover. (11) Error in allowing Gress to testify that lot of land number 128 in the twentieth district of Dodge county was embraced in the limits stated in the paper purporting to be a lease from McAuthur & Griffin to Steele & Co.

A. C Pate and E. A. Smith, for plaintiff in error.

De Lacy & Bishop, for defendant in error.

SIMMONS J.

Coody brought this action against the Gress Lumber Company for trespass, in entering upon lot of land number 128, in the twentieth district of Dodge county, and cutting and carrying away therefrom yellow pine timber growing thereon. The defendant pleaded the general issue. On the trial the plaintiff introduced a deed conveying the lot mentioned, made by Thomas Dunn to him September 27, 1883, which was recorded in October, 1883. He also introduced a deed by Lute Sapp to Dunn, dated February, 1868, conveying the same land. The plaintiff proved the value of the timber taken from the land, and that Dunn, from whom he purchased, was in possession when he (the plaintiff) bought from him, and that he (plaintiff) had been in possession ever since. The plaintiff also testified that he had no notice that Dunn had sold the timber to Griffin until after he had purchased the land from him, and we infer from his testimony, after he had paid for the land. The defendant introduced in evidence what is styled in the record a "lease" from Thomas Dunn to J. W. Griffin, dated September 29, 1881, by which Dunn leased to Griffin all the saw-mill timber upon lot 128, giving Griffin the right of access, etc., to the lot" as long as it may be used, beginning at the present and ending when it ceases to be used." It was stipulated in this" lease" that the land and timber should revert to Dunn as soon as the parties holding under the lease should have taken off all the timber they might be entitled to under it. The defendant also introduced a contract dated September 20, 1881, between McAuthur & Griffin and A. B. Steele & Co., by which MCAurthur & Griffin sold to Steele &. Co. timber suitable for the manufacture of lumber, shingles, etc., from as many as 50 lots of land embraced in the 20th district of Dodge county, within certain described boundaries, the number of only a few lots being mentioned, and number 128 not being mentioned among these. Steele & Co. were given 20 years to finish getting the timber from said lots, provided it took that much time. The defendant also introduced a transfer from G. V. Gress of all his interest under the last-mentioned contract to the Gress Lumber Company; also a bond for titles executed January 28, 1885, by A. B. Steele to G. V. Gress, reciting that Steele had on that day agreed to sell to Gress all his right, title, etc., in and to the property in the county of Dodge owned by said Steele and Gress under the firm name of A. B. Steele & Co., consisting of leases, uncut timber, etc. This last paper was signed by Steele, and attested by two witnesses. The defendant further introduced testimony tending to show that the plaintiff knew that Dunn had sold the timber to Griffin before he bought from Dunn. The jury found for the defendant. The plaintiff moved for a new trial upon the several grounds set out in the motion. The motion was overruled, and he excepted.

1. The court charged in substance (see 9th and 10th grounds) that if Dunn had leased the timber to Griffin prior to the sale of the land to Coody, the plaintiff. Coody, took the land subject to the incumbrance of the leasehold interest, and that it was immaterial whether Coody bought without notice of the lease; that the question of notice had...