Guin v. Hilton & Dodge Lumber Co.

• Decision Date: 31 July 1909
• Docket Number: 1,426.
• Citation: 65 S.E. 330,6 Ga.App. 484
• Parties: GUIN v. HILTON & DODGE LUMBER CO.
• Court: Georgia Court of Appeals

65 S.E. 330

6 Ga.App. 484

GUIN v. HILTON & DODGE LUMBER CO.

No. 1,426.

Court of Appeals of Georgia

July 31, 1909

Syllabus by the Court.

One in possession of land under bond for title who furnishes a sawmill with logs cut from the land may proceed under section 2809 of the Civil Code of 1895 to foreclose his lien, and the fact that the owner of the sawmill has paid the purchase price of the logs to the holder of the legal title to the land, taken or retained to secure the payment of the purchase price, but who has taken no steps to protect the value of the property, nor prosecuted to a successful conclusion an action to recover possession of the premises, affords no defense to the foreclosure of the lien.

It was error to admit in evidence a mortgage and certain notes which were irrelevant, and which tended to confuse the jury and becloud the issues to the injury of the party objecting thereto.

Error from City Court of Mt. Vernon; J. B. Geiger, Judge.

Action by C. M. Guin against the Hilton & Dodge Lumber Company. Judgment for defendant. Plaintiff brings error. Reversed.

M. B Calhoun and W. B. Kent, for plaintiff in error.

W. M Lewis, for defendant in error.

RUSSELL J.

Guin was proceeding to foreclose a lien under the provisions of section 2809 of the Civil Code of 1895 by levying upon 25,000 feet of yellow pine lumber, claiming that he was entitled to a lien by virtue of a contract under which he had furnished the Hilton & Dodge Lumber Company certain yellow pine timber and logs. The Hilton & Dodge Lumber Company filed a counter affidavit, alleging: (1) That they were not indebted to the plaintiff in any sum whatever; (2) denying the existence of the lien claimed by the plaintiff, and that the defendant contracted with him as alleged in his affidavit; and (3) denying that any demand had ever been made upon it or any of its agents. Upon the trial of the issue formed by the counter affidavit, the jury found in favor of the defendant. The plaintiff thereupon made a motion for a new trial, and excepts to the judgment overruling it. It appears from the plaintiff's evidence that he made a contract with the defendant, through its agent, Sedwick, to furnish its sawmill certain logs at an agreed valuation, and that he had furnished 57 logs at the defendant's mill of dimensions upon which the price had been agreed to be $7 per 1,000 feet. The plaintiff testified that he had made demand upon Sedwick before instituting suit, and that at the time of the demand the contract had been completed. The defendant did not offer any testimony denying that the contract had been made as claimed by the plaintiff, nor prove that the logs had not been furnished, or that Sedwick was lacking in authority to bind it in the transaction. The only ground of the defendant's counter affidavit supported by any evidence is that the plaintiff did not have legal title to the logs furnished by him to the mill. It was proved that the plaintiff held possession of the land from which the logs were cut, under a bond for title.

1. The question which arises for determination therefore is whether one who holds a tract of land under bond for title is the owner thereof in such a sense as that he can foreclose the special lien created by law in favor of a person who furnishes logs to a sawmill; or, to state the question with more special reference to the facts involved in this case can one admittedly furnished with logs for the maintenance of his sawmill raise the question that he who furnished the logs has only an equitable interest in the land from which the timber was cut?

After a very diligent search, we have been unable to find any direct adjudication upon the subject. This is perhaps due to the fact that the statutory remedy of which the plaintiff sought to avail himself is peculiar to this state. This statute is found in Civ. Code 1895, § 2809, and is as follows: "All persons furnishing sawmills with timber logs, provisions, or any other thing necessary to carry on the work of sawmills shall have liens on said mills and their products, which shall, as between themselves, rank according to date, and the date of each shall be from the time when the debt was created, and such liens shall be superior to all liens but liens for taxes, liens for labor, as provided for in sections 2792, 2793, and 2808, and all general liens of which they have actual notice before their debt was created, to which excepted liens they shall be inferior." This statute seems to leave it in doubt as to whether one who has furnished a sawmill with any of the necessary articles mentioned would not have a lien even if his title to the article furnished is not absolutely perfect. It can scarcely be questioned that one who has furnished to a sawmill logs he has bought from a third person, or has employed laborers to cut, could enforce the lien against the sawmill, notwithstanding that the logs are subject to a claim for purchase money or a lien for labor. In such a case the title of the one who furnished the logs would in a sense be incumbered. The holder of a bond for title who is in possession of the land has the equitable title thereto, and, in consequence of his possession and of...