Lovelace-eubanks Lumber Co v. Brown, (No. 18424.)

• Decision Date: 22 May 1928
• Docket Number: (No. 18424.)
• Citation: 38 Ga.App. 223,143 S.E. 434
• Parties: LOVELACE-EUBANKS LUMBER CO. v. BROWN.
• Court: Georgia Court of Appeals

38 Ga.App. 223

143 S.E. 434

LOVELACE-EUBANKS LUMBER CO.

v.BROWN.

(No. 18424.)

Court of Appeals of Georgia, Division No. 2.

May 22, 1928.

(Syllabus by Editorial Staff.)

Error from Superior Court, Wilkes County; C. J. Perryman, Judge.

Action by the Lovelace-Eubanks Lumber Company against B. F. Brown. Verdict for plaintiff was set aside, and new trial granted, and plaintiff brings error. Affirmed.

Clement E. Sutton, of Washington, Ga., for plaintiff in error.

Colley & Wynne and W. A. Slaton, all of Washington, Ga., for defendant in error.

Syllabus Opinion by the Court.

BELL, J. B. F. Brown, the owner of certain realty, entered upon the following written agreement with J. P. Carlton:

"We, B. F. Brown, party of the first part, sold to J. P. Carlton, party of the second part, the western side of pine thicket, supposed to be 100, 000 more or less, at $5.50 per M. on the stump. Party of the second part to pay for lumber as soon as sawed, and before moving same. B. F. Brown party of the first part agrees to cut timber and log the mill at $3.00 per thousand."

Held:

1. While it has been held that standing timber is to be regarded as realty (Moore v. Vickers, 126 Ga. 42 [1], 54 S. E. 814), "a contract of sale in regard to timber which is attached to the soil, but which is presently to be severed therefrom and converted into personalty before the title is to pass to the purchaser, is an executory sale of personalty, and not of an interest in land." Clarke v. McNatt, 132 Ga. 610 (3), 64 S. E. 795, 26 L. R. A. (N. S.) 585. Accordingly, the contract quoted is to be construed as an executory agreement whereby Brown agrees to surrender possession and title to the timber to Carlton upon its being converted into lumber by the latter and paid for at the agreed price per thousand feet. Possession not having been surrendered by Brown, the provisions of sections 3318 and 3319 of the Civil Code 1910, relative to the record of conditional bills of sale of property sold and delivered, do not have application, and a purchaser from Carlton would not acquire a good title to the lumber as against Brown by reason of the fact that the contract set forth had not been recorded as required by the statutes indicated.

2. Where the owner of certain land and timber enters into a contract with another whereby the executory purchaser is obligated to convert the timber into lumber, and pay for it at a named price per thousand feet as a condition precedent to his acquiring either possession or title...