Jeffreys-McElrath Mfg. Co. v. Faulk

• Decision Date: 23 December 1935
• Docket Number: 24944.
• Parties: JEFFREYS-McELRATH MFG. CO. v. FAULK et al.
• Court: Georgia Court of Appeals

183 S.E. 108

52 Ga.App. 324

JEFFREYS-McELRATH MFG. CO. v. FAULK et al.

No. 24944.

Court of Appeals of Georgia, Second Division

December 23, 1935

Syllabus by Editorial Staff.

Where landowner conveyed timber under recorded contract allowing five years for its removal and calling for payment of specified sum for extension of time for removal, and subsequently, within five years, conveyed land by recorded warranty deed without reserving timber or referring to timber contract, purchaser of land held entitled to recover from timber purchaser in accordance with timber contract where timber purchaser availed himself of extension privilege, notwithstanding timber purchaser paid vendor therefor.

Error from Municipal Court of Macon; C. H. Hall, Judge pro hac vice.

Suit by H. L. Faulk and others against the Jeffreys-McElrath Manufacturing Company. Judgment for plaintiffs, and defendant brings error.

Affirmed.

Jones Johnston, Russell & Sparks and Edward Benton, all of Macon for plaintiff in error.

Park & Strozier and J. Lundie Smith, Jr., all of Macon, for defendants in error.

Syllabus OPINION.

SUTTON Judge.

A owned certain realty on which there were standing trees suitable for sawmill purposes, and on May 17, 1927, for a consideration of $1,150, conveyed to B all the timber on the land, providing in the contract that B was to have five years in which to cut and remove the timber, and further providing that B should "have such additional time, not exceeding five years, as may be desired, in which to cut, saw and remove the timber, and to exercise the privileges herein given and as stated, but for such additional time" B shall pay to A "ten per cent. of the purchase price hereinbefore stated; the same to become due and payable at the end of each additional year, so long as the privileges are exercised." This contract was recorded. On August 30, 1927, A, by warranty deed, conveyed the land on which the timber stood to C, making no reservation of the timber or reference to the timber contract above mentioned. This deed also was recorded. On August 24, 1932, B chose to exercise the renewal privilege in the timber contract and paid to A a sum of money which was accepted and retained as full payment of all amounts to be paid by B for the exercise of the privileges granted in the timber contract as to cutting the timber for five additional years; such sum being accepted in lieu of the yearly sum stipulated in the contract. Thereupon, B cut and removed timber from the land, and C demanded payment therefor from B, which was refused. C then instituted suit against B for the 10 per cent. due yearly under the timber contract, and B defended on the ground that A was entitled to the consideration of the renewal agreement or option in the contract, and that the rights of A under the contract did not pass to C under the warranty deed to the land made by A to C. The judge, sitting without a jury, rendered judgment in the plaintiff's favor, and the defendant excepts.

The evidence authorized a judgment for the full amount sued for. The purchaser of the land, there being no reservation in the warranty deed, succeeded to and acquired all the rights of the grantor in the timber contract in the event the purchaser of the timber elected to exercise the privilege of renewal or extension provided therein; the sale being of...