Lovelace-Eubanks Lumber Co. v. Brown

• Decision Date: 22 May 1928
• Docket Number: 18424.
• Citation: 143 S.E. 434,38 Ga.App. 223
• Parties: LOVELACE-EUBANKS LUMBER CO. v. BROWN.
• Court: Georgia Court of Appeals

143 S.E. 434

38 Ga.App. 223

LOVELACE-EUBANKS LUMBER CO. v. BROWN.

No. 18424.

Court of Appeals of Georgia, Second Division

May 22, 1928

Syllabus by Editorial Staff.

Contract of sale in regard to timber attached to soil, but which is presently to be severed therefrom and converted into personalty before title is to pass to purchaser, is executory sale of personalty, and not of an interest in land.

Contract for sale of timber on stump to be presently cut and paid for held executory agreement to surrender possession and title to timber on its conversion into lumber not required to be recorded under Civ. Code 1910, §§ 3318, 3319, as conditional bill of sale of personalty, where possession was not surrendered by seller, and purchaser from original purchaser would not acquire title to lumber as against original seller for failure to record contract under statute.

Where owner of land and timber entered into executory contract obligating purchaser to convert timber into lumber and pay for it at named price as condition precedent to acquiring possession or title, fact that executory purchaser entered on premises and proceeded to convert timber into lumber did not clothe him with indicia of title such as to import authority to sell lumber as against title of true owner.

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.

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...