Opinion
29794, 29800.
DECIDED FEBRUARY 23, 1943.
Trespass; from Albany city court — Judge Clayton Jones. February 10, 1942.
R. J. Bacon, for plaintiff.
Bennet, Peacock Perry, for defendant.
1. The motion to dismiss the writ of error is overruled.
2. Where, as here, the grantee in a security deed, under the exercise of a power of sale, becomes the purchaser at such sale and fails to record such sale deed, and has a parol agreement of tenancy with his original grantor (who remains in actual possession of the premises), and while the grantor is thus in possession, before the sale deed is recorded, the grantor, in collaboration with another, fells timber on the land in question, and disposes of it to a third person who has no notice of the sale under the power or of the relationship of landlord and tenant between the grantee and the grantor in the security deed, such grantee can not maintain a suit for trespass on the land, or a trover action for the timber detached or its value, or other action. The purchaser of the timber, in such event, is an innocent purchaser for value.
DECIDED FEBRUARY 23, 1943.
F. G. Beavers brought suit for damages against Reynolds Brothers Lumber Company. Omitting the formal parts the petition alleged: "In the months of September and October 1940, and prior to October 20, 1940, the said defendant cut and carried away and appropriated to their own use certain timber the title to which was in your petitioner then and there, the same being cut and removed from lot of land No. 139 in the sixteenth district of Lee County, Georgia. The said timber was sawed into lumber and the lumber amounted to 33,602 feet as defendant's records show, and was of the value then and there of $30 per thousand. Petitioner charges that the said cutting was a trespass on his land without warrant or authority, and charges that the same was with a reckless disregard of your petitioner's rights and was a willful trespass. To the loss and damage of your petitioner in the sum of $1200."
The defendant filed demurrers, general and special, which were overruled and exceptions pendente lite were filed. The case proceeded to trial. The evidence, material to a determination of the assignments of error, was in substance as follows: William Young on April 3, 1928, executed a security deed to Beavers to secure an indebtedness of $420.00. The deed was recorded on the fifth of April next following. The deed conveyed all of lot 139 in the sixteenth district of Lee County, except 25 acres in the northwest corner and 25 acres in the northeast corner. Young remained in possession. He paid $300 of the indebtedness. In February 1938, under a power of sale in the security deed, Beavers advertised the land for sale. The deed provided that the grantee might become the purchaser at such sale. Beavers did buy the land in at the sale. The sale deed was not recorded until the ____ day of ____, 1941. On the date of the sale under the power Beavers had a parol contract with Young whereby Young rented the premises from Beavers for a stipulated sum. Young continued in actual possession under this tenancy agreement. While thus in such possession, in the year 1940, before the sale deed was recorded, Young sold the timber on the land to Nat Robinson, who was to cut and haul the timber, sell it, and divide the purchase price equally with Young. Under this arrangement Robinson cut and sold the timber to the defendant lumber company. After the timber was thus sold and before the sale deed was recorded, the plaintiff demanded of the lumber company the value of the timber, approximately $500. Payment was refused. The plaintiff then brought this action.
At the conclusion of the evidence the court granted a nonsuit. The plaintiff excepted. The defendant filed a cross-bill of exceptions. Defendant filed a motion to dismiss the writ of error on the ground that the judgment of nonsuit was signed on February 10, 1942, and the bill of exceptions was not signed by the judge until June 25, 1942, — four months and fifteen days after the judgment, and that there appears in the record no reason or excuse for this long delay and no reason or excuse why the plaintiff in error did not secure the signing of the bill of exceptions earlier. There is also a controversy as to whether the petition should be construed as one for trespass on land, or trover, or some other action.
1. It is true that it does not appear from the record why a delay of four and a half months from the date of the judgment to the date of securing the signature of the judge to the bill of exceptions was occasioned. However, there are extraneous documents concerning same. It is possible that the additions to the bill of exceptions originally presented to the judge, which were made during this time, could have been omitted without neglect or design. In this view, though desiring not to be understood as approving unnecessary delay in presenting exceptions to a judgment, the motion to dismiss is overruled.
2. The purchaser of real property, under power of sale contained in a security deed, where the deed executed under the power is not recorded, stands in the shoes of the grantee in the security deed in so far as the rights of innocent third parties are concerned. Under the record of this case it is immaterial whether the petition be construed as one grounded in trespass on land, or one in trover for a conversion of the timber detached from the realty, or other action. In our view the plaintiff failed to make out a case entitling him to recover under any theory. As to the first, the evidence fails to show (a) that the lumber company knew, actually or constructively, of the sale under the power contained in the security deed. (b) Young continued in possession from the time of the execution of the security deed until after the timber was cut. (c) The fact that the possession of Young when the timber was cut was by virtue of a parol contract of tenancy between Beavers as landlord and Young as tenant, under the unrecorded sale deed, is not sufficient to deprive the lumber company of the character of an innocent purchaser from Robinson (who purchased the timber from Young, cut it and sold it to the lumber company). (d) It must be kept in mind that the evidence nowhere discloses any relationship of principal and agent or master and servant as between the lumber company and Robinson and Young or either of them. Therefore the evidence fails to sustain an action for trespass. Nor does it sustain an action of trover, or other action.
It was held by this court in Mills Lumber Co. v. Milan, 57 Ga. App. 211, 216 ( 194 S.E. 911): "The grantee in a security deed, or the vendor in a bond for title, without taking steps to protect the property or recover possession may not be said to be the owner of the land or of the timber growing thereon. Such holder of the legal title could, without question, ask and obtain the aid of a court of equity against the grantor in the security deed or the vendee in a bond for title, and the purchaser of the timber, where it can be shown that the cutting and removing the timber will impair the security. . . It has been held that the grantor in a security deed while remaining in peaceable possession of the land, although the debt secured by such deed is past due, may defeat an action in trover brought by the grantee in the deed to recover the timber cut from such land in the hands of the grantor or a purchaser from him. . . It has also been held that no action may be brought by the grantee in a security deed to recover the value of the timber cut from the land, although such cutting was without the knowledge and consent of the grantee, and although the party doing the cutting had knowledge of the fact that the grantee held the legal title. Scottish-American Mortgage Co. v. King Lumber Co., 35 Ga. App. 524 ( 134 S.E. 140)."
It must follow, without regard to the construction of the petition, that the court did not err in granting a nonsuit, since on neither theory would the evidence sustain a recovery. For a detailed discussion of the principles applied to the facts of the instant case we call attention to the well considered opinion in Mills Lumber Co. v. Milam, supra. See Federal Land Bank of Columbia v. Saint Clair Lumber Co., 58 Ga. App. 532 ( 199 S.E. 337). It is helpful to consider in this connection the Code, § 29-401, for it deals with priority of rights concerning deeds to land and may by deduction enlighten us in such a situation as here presented.
It is unnecessary to decide the other questions raised.
Judgment affirmed on main bill of exceptions. Cross-bill dismissed. Broyles, C. J., and MacIntyre, J., concur.