Warren v. Ash

• Decision Date: 15 August 1907
• Citation: 129 Ga. 329,58 S.E. 858
• Parties: WARREN. v. ASH et al.
• Court: Georgia Supreme Court

58 S.E. 858

(129 Ga. 329)

WARREN.

v.ASH et al.

Supreme Court of Georgia.

Aug. 15, 1907.

1. Logs and Logging—Sale of Standing Timber—Construction of Conveyance.

The conveyance of the timber from the plaintiffs to the persons under whom the defendant claims passed an estate in the growing trees, determinable upon the grantees' failure to cut and remove the timber within a reasonable time, not less than five years.

2. Same—Assignment of Conveyance.

A grantor who has conveyed timber to another, to be cut in a reasonable time, is not concerned with the validity or formality of execution of his gtantee's assignment of title thereto to a third person, made before the grantee's estate therein has terminated.

3. Same—Revesting of Title.

Standing timber is part of the realty; and the owner of the soil, who has by deed conveyed the timber, is not revested with the title by a mere verbal declaration of the owner of the timber that he surrendered it to the owner of the soil. Such verbal declaration would not work an estoppel, when the owner of the soil had not acted thereon.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Property, § 4.]

(Syllabus by the Court.)

Error from Superior Court, Decatur County; W. N. Spence, Judge.

Action by R. P. Ash and others against S. J. Warren. Judgment for plaintiffs, and defendant brings error. Affirmed, with directions.

The plaintiffs, on June 24, 1904, sold to Smith, Sims & Morea, a shingle mill and certain standing timber, and executed to the purchasers the following instrument: "Georgia, Decatur County. This indenture, made and entered into this 29th day of June, 1904, between R. P. Ash, T. H. Wilson, and Mrs. Rosa Ash, parties of the first part, and J. H. Sims, J. F. M. Smith, and G. W. Morea, parties of the second part, showeth: That the said parties of the first part has this day sold to the parties of the second part a certain millhouse known as the 'Ash shingle mill' and located on lot of land number 192 in the 27th district, being one boiler and engine, and one shingle mill, cut-off saw, all the piping and other fixtures belonging to said mill, one log cart, and four oxen, also all the said timber measuring ten inches at the stump and upwards, on lots of land number 191, 192, 150 acres of lot No. 169, all in the 27th district of said county and state, for the sum of nineteen hundred dollars. I have taken their four promissory notes bearing even date with these presents, and due as follows: One for $500.00, due October 1st, next; one for $500.00, due Feby. 1st, 1905; one for $500.00, due May 1st, 1905; one for $400.00, due August 1st, 1905—all said notes bearing interest from date at the rate of eight per cent, per annum. It is further agreed that the notes given for said property shall first go to the payment of two certain mortgages held by the Bainbridge State Bank—one given by R. P. Ash, and one given by R. P. Ash and T. H. Wilson. It is agreed that the parties of the second part is to have a lease on the mill site as it now stands for five years from said date. If the said parties of the second part shall want to use sawmill site longer than five years, they are to pay rent for same. It is fur-ther agreed that the parties of the first part transfer the contract to the siding to the parties of the second part free of charge. It is further agreed that the parties of the second part shall have the right to build roads and trams for the purpose of hauling said timber to said mill; and it is agreed to the parties of the second part shall have the right to sell or transfer all of said lease privileges to any other parties, with all the rights and privileges herein granted. [Exe-cuted by the parties.]" The purchasers oper-ated the mill for two years after their purchase, when they removed the mill and sold the houses erected on the mill site. On February 13, 1907, J. F. M. Smith, one of the purchasers, transferred in writing the fore-going timber lease to S. J. Warren. The plaintiff's sought to enjoin Warren from cut-ting any of the timber on the described lots of land. On the interlocutory hearing the plaintiffs submitted affidavits that one of the firm of Smith, Sims & Morea, when he was moving the shingle mill, stated to one of the plaintiffs that he had cut all of the timberconveyed by the lease and that he surrendered the premises...