Johnson v. Truitt

• Citation: 50 S.E. 135,122 Ga. 327
• Parties: JOHNSON v. TRUITT.
• Decision Date: 07 March 1905
• Court: Georgia Supreme Court

50 S.E. 135

122 Ga. 327

JOHNSON v. TRUITT.

Supreme Court of Georgia

March 7, 1905

Syllabus by the Court.

1. An instrument, executed in the form of a deed, conveying "all the timber and logs suitable to be manufactured into cross-ties" on described lots, and providing that the contract shall expire after 12 months from its date, does not pass to the purchaser the absolute title to the timber described, but only a license to use it for the purpose stated during the period specified in the contract.

2. Where such an instrument also provided that, after the expiration of the time fixed in the contract, "all the timber left [on the land] is to revert" to the seller the word "timber" will not be construed to include manufactured cross-ties.

3. Even though the purchaser might have no right, without the seller's permission, to enter upon the land, after the expiration of the time fixed in the contract, for the purpose of removing cross-ties which were cut and left there before such time, the purchaser would not, by leaving the cross-ties on the land, lose his title thereto, and the seller would have no right to convert them to his own use.

4. The evidence demanded the verdict in the plaintiff's favor and the court erred in granting a new trial.

Error from City Court of Baxley; J. I. Carter, Judge.

Action by I. F. Johnson against H. G. Truitt. Judgment for defendant, and plaintiff brings error. Reversed.

Thomas & Parker, for plaintiff in error.

J. B. Moore, for defendant in error.

COBB J.

There being no issue of fact involved, but the case depending entirely upon the construction of the contract between the parties, the trial judge had no discretion, and the rule that his discretion will not be controlled when it is exercised in granting a first new trial has no application.

It has been held that the effect of an instrument conveying timber is to convey the absolute title to the timber described, that this title is not affected by a stipulation as to when the timber shall be removed, and that, if the grantee removes the timber after that time, he will be liable in trespass for the entry, but not for the value of the trees. Hoit v. Stratton Mills, 54 N.H. 109, 20 Am.Rep. 119. See, also, White v. Foster, 102 Mass. 375; Johnson v. Moore, 28 Mich. 3; Heflin v. Bingham, 56 Ala. 567, 28 Am.Rep. 776. In this state, however, the rule is that such an instrument as the one involved in this case is merely a license to cut and remove the timber for the purposes stated during the time fixed in the contract. Baxter v. Mattox, 106 Ga. 344, 32 S.E. 94; Perkins v. Peterson, 110 Ga. 24, 35 S.E. 319. If no time is specified within which the timber is to be cut and removed, the grantee has "a reasonable time" within which to do so. McRae v. Stillwell, 111 Ga. 65, 36 S.E. 604, 55 L.R.A. 513; Goette v. Lane, 111 Ga. 400, 36 S.E. 758; Patterson v. Graham, 164 Pa. 234, 30 A. 247. The effect of the instrument involved in the present case was therefore to give Johnson a license to cut the timber into cross-ties for a period of 12 months from the date of the instrument. At the expiration of that period the license was revoked.

Under the clause in the conveyance, "all the timber left thereon is to revert to the said H. G. Truitt, his heirs and assigns," all the trees on the land clearly were the property of Truitt after the expiration of the time fixed in the contract. See Monroe v. Bowen, 26 Mich. 523. It might be suggested that inasmuch as the term "timber" could embrace cross-ties (Kollock v Parcher, 52 Wis. 393, 9 N.W. 67), and as the title to the trees was always in Truitt-- Johnson having a mere license to use them for a definite period and for a particular purpose--the expression "timber to revert" must refer to that the title to which had passed out of Truitt, to wit, the cross-ties. ...