J. C. Turner Lumber Co v. Henderson Lumber Co
| Decision Date | 26 July 1917 |
| Docket Number | (No. 8190.) |
| Citation | 20 Ga.App. 682,93 S.E. 301 |
| Parties | J. C. TURNER LUMBER CO. v. HENDERSON LUMBER CO. |
| Court | Georgia Court of Appeals |
Rehearing Denied Aug. 2, 1917.
(Syllabus by the Court.)
Error from Superior Court, Irwin County; W. F. George, Judge.
Action by the J. C. Turner Lumber Company against the Henderson Lumber Company. There was a judgment for defendant, and plaintiff brings error. Affirmed.
The J. C. Turner Lumber Company, as transferee, sued the Henderson Lumber Company upon a promissory note of the Dickson-Henderson Lumber Company (the name of which was changed to Henderson Lumber Company), for $6,860 principal, besides interest and attorney's fees, dated December 11, 1907, and payable June 10, 1908, to the Taylor-Cook Cypress Company. The note recites that it "is a renewal of the note given for timber on lot 165 in Fourth district, Irwin county, Georgia, under contract dated Aug. 13, 1906." A deed dated August 13, 1906, from the Taylor-Cook Cypress Company to the Henderson Lumber Company, refers to the original note, and in consideration thereof conveys "all its rights, title, and interest in and to the following described timber in Irwin county, Georgia, to wit, the timber on lot number one hundred and sixty-five, " etc. Certain timber upon other described lots of land and for other and different considerations was also conveyed by this deed. In the habendum clause of the deed is the following language:
"Together with all and singular the rights, members, easements, hereditaments, and appurtenances unto the same belonging or in any wise appertaining; it being the intention hereby to transfer, assign, and convey unto the said party of the second part, its successors, heirs, and assigns, all of the rights, powers, privileges and timber described in the respective conveyances hereinbefore referred to and thereby undertaken to be conveyed, and no more, and excepting herefrom any such timber as may have heretofore been cut and removed."
The covenant of warranty in the deed is as follows:
"And the said party of the first part, for itself, its successors and assigns, will warrant and forever defend unto the said party of the second part, its successors, heirs, and assigns, the right and title to the above-described property against the claims of itself, the said first party, and of all persons claiming by, through, or under it, and as well against the claim or claims of all and every other person or persons whomsoever claiming or to claim the same."
The note sued on in this case was the last to mature, and it was stipulated in the deed that no timber on any tract should be cut or removed until payment of the note given therefor. On the date of the execution of the original note and deed the Taylor-Cook Cypress Company and the Henderson Lumber Company entered into an agreement which refers to the making of the deed and the stipulations therein contained, and recites:
This agreement was properly executed and duly recorded.
The Henderson Lumber Company filed an answer, in which a prima facie case for the plaintiff was admitted, and which in effect sets up a plea of total failure of consideration, showing that the note sued on was a re-newal of a note given on August 13, 1906, as evidence of the purchase price of the timber on lot 165 in the Fourth district of Irwin county, Ga.; that the Taylor-Cook Cypress Company, when it conveyed the timber to the defendant, did not have title thereto; that this was unknown to defendant then, and at the time it gave the several renewal notes, including that sued on; that the plaintiff was not a bona fide holder for value of the note, but that when the note was assigned to it, and even at the time of its execution, this lack of consideration was known to it; and that the Taylor-Cook Cypress Company was insolvent. In amplification of its plea of failure of consideration, the defendant showed that, before it became possible for it to enter upon the said premises for the purpose of removing timber, the Cypress Company became involved in litigation as to its title thereto, and that during that time, and before an adjustment of the title, whereby the Cypress Company became the actual owner of the timber, the then true owner allowed the boxing of the timber and the removal of the turpentine therefrom, and also caused the removal of a certain portion of the bargained timber for cross-ties; that, despite the fact that the price of lumber had enhanced the timber on said tract was, by reason of these facts, worth much less than when it was conveyed to defendant. The defendant further alleged that, before the Cypress Company came into actual and legal possession of the remainder of the bargained property, the defendant had been forced to move its tramroad and machinery from that vicinity, and that for this reason the timber had become entirely worthless to it.
The trial of the case resulted in a verdict for the defendant. Plaintiff filed a motion for a new trial, on the general grounds that the verdict was contrary to law and the evidence and was without evidence to support it, and, the motion being overruled, exceptions were taken to this court.
Philip Newbern, of Ocilla, and Wilson & Bennett, of Waycross, for plaintiff in error.
Quincey & Rice, of Ocilla, and Eldridge Cutts, of Fitzgerald, for defendant in error.
JENKINS, J. (after stating the foregoing facts). 1. If the conveyance which constituted the consideration of the original note was merely of such right, title, and interest in the timber described as belonged to the grantor, then the maker of the note could not plead a failure of consideration by reason of the assertion of the enforcement of a paramount title outstanding against the grantor at the time of the execution of the conveyance. Therefore the first question for determination is whether the intent of the instrument quoted from was to convey the timber itself as described, with a warranty of title thereto, or whether it sought only to pass such right, title, and interest as the grantor had and owned therein. In White & Corbitt v. Stewart & Co., 131 Ga. 460, 62 S. E. 590, 15 Ann. Cas. 1198, it was held:
The principle of law thus laid down appears to be well settled by the decisions of various courts and has been clearly stated by text-book writers. In McDonough & Co. v. Martin, 88 Ga. 675, 16 S. E. 59, 18 L. R. A. 343, the Supreme Court of this state said:
"If the conveyance is only of the grantor's right, title, and interest in the land, the scope of it is not enlarged by a general covenant; but such covenant must be limited to fit the subject conveyed"—citing 1 Warvelle on Vendors, 421, § 8; Allen v. Holton, 20 Pick. (Mass.) 45S; Sweet v. Brown, 12 Mete. (Mass.) 175. 45 Am. Dec. 243; McNear v. McComber, 18 Iowa, 12; Gee v. Moore, 14 Cal. 472; Kimball v. Semple, 25 Cal. 440; Bates v. Foster, 59 Mc. 157, 8 Am. Rep. 406; Gibson v. Chouteau, 39 Mo. 536; Young v. Clippinger, 14 Kan. 148; Stockwell v. Couillard, 129 Mass. 231.
Thus it clearly appears that the conveyance under consideration cannot be adjudged a warranty deed merely because the covenant of warranty itself is general, and purports to warrant the title to the bargained timber against the claims of all persons whomsoever. As we have already seen, the scope of the conveyance is measured and limited by the terms of the grant itself, and is not to be enlarged by general terms in the...
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