Morgan v. Perkins

• Decision Date: 29 August 1894
• Parties: MORGAN v. PERKINS et al.
• Court: Georgia Supreme Court

21 S.E. 574

94 Ga. 353

MORGAN v. PERKINS et al.

Supreme Court of Georgia

August 29, 1894

Syllabus by the Court.

1. One who sold standing timber of a certain description upon a tract of land, the purchaser having died before he severed the timber and removed it, is not concerned with the question whether persons authorized by the administrator of the purchaser to cut and appropriate the timber did so as legal purchasers from the administrator, or only as his licensees. Relatively to the vendor of the timber they stand as the administrator himself would have stood had he, in behalf of the estate which he represented, done the work in person or by his servants or employés.

2. Timber, while standing on land on which it grew, being realty, a written contract made in the spring of 1885, by which the owner of the land sold to another "all of the saw timber measuring twelve inches and over in diameter at the stump on lot of land ninety-three [district and county] *** timber to be cut off the land by December 25, 1886," passed title to only so much of the timber described as was cut before December 25, 1886, unless this limitation as to time was subsequently waived by the seller. If it was waived by expressly fixing another limit, whether orally or in writing, this new limit took the place of the former one, but there was no right to act after the new limit expired. The controlling question in the present case is whether the fund in controversy was produced by timber cut before the new limit had expired or not until afterwards. Let the new trial as to the ownership of the fund be confined to a determination of this question.

3. Where a defendant, having been sued separately by two plaintiffs, causes them to interplead, the losing party in the interpleader may be charged with the costs of the interpleader and of the action brought by himself, but cannot be charged with the costs of the other action, to which he was no party.

4. When the last day for tendering a bill of exceptions is Sunday the following day is superadded by Code. § 4, par. 8.

Error from superior court, Pulaski county; W. H. Fish, Judge.

Action of trespass by one Morgan against J. O. Perkins administrator, and others, for cutting and removing timber. Defendants had judgment, and plaintiff brings error. Reversed.

J. H. Martin and Pate & Bright, for plaintiff in error.

W. L. Grice, for defendants in error.

SIMMONS J.

1. In February, 1885, Morgan sold to Perkins all the saw timber measuring 12 inches and over in diameter at the stump in lot of land No. 93 in Pulaski county, and a conveyance of the timber was made in writing, in which it was stipulated that the timber was to be cut off the land by December 25, 1886. Perkins died before that time, and his administrator sold the timber that had not been cut to Thompson & Co. Morgan, the vendor, is not concerned with the question whether Thompson & Co. cut and appropriated the timber as purchasers or only as licensees. If they cut the timber within the time agreed upon, it was the same thing to Morgan as if the administrator had cut it by himself or his servants. If he had sold it, and received payment for it, it made no difference to him whether the administrator cut it, or whether Thompson & Co. cut it,...