Opinion
44221, 44222.
ARGUED JANUARY 7, 1969.
DECIDED FEBRUARY 17, 1969.
Trover. Coffee Superior Court. Before Judge Hodges.
Ewing Williams, Lee R. Williams, Langdale Langdale, John H. Langdale, H. L. Cole, for appellant.
Dewey Hayes, Summer Boatright, J. Laddie Boatright, for appellees.
1. The plaintiff's valid, though unrecorded, timber lease agreement extension, based upon a valuable consideration, gives it superior timber rights to those of the defendants, based upon their subsequent, recorded deeds of gift, regardless of their notice of the extension.
2. The timber in question was subject to the trover actions.
3. The court erred in denying the plaintiff's motions for directed verdicts on the issue of liability and in entering judgments on the verdicts in favor of the defendants.
ARGUED JANUARY 7, 1969 — DECIDED FEBRUARY 17, 1969.
The Langdale Company brought trover actions against George Day and Viola D. Sapp, claiming title, under an attached, unrecorded, purported extension of a recorded, December 31, 1963, timber lease agreement executed by defendant's father on November 12, 1964, prior to his conveying to the defendants by deeds of gift an undivided interest in the realty (one-half interest on December 29, 1964 and the other half on January 9, 1965), to timber which had been cut on the defendants' lands prior to the March 31, 1965, expiration of said lease as extended, but not removed because of adverse weather conditions. The defendants filed answers and general and special demurrers to the petitions. The cases were tried before juries, which rendered verdicts in favor of the defendant in both cases, from the judgments on which the plaintiff appeals.
1. The plaintiff's valid, though unrecorded, timber lease agreement extension, based upon a valuable consideration, gives it rights to the timber on the realty which take priority over the defendants' rights thereto, based upon their subsequent, recorded deeds reciting considerations of love and affection, regardless of whether or not the defendants had notice of the lease extension. Price v. Watts, 223 Ga. 805 (1) ( 158 S.E.2d 406), and citations. The charges to the juries, to the effect that the defendants must have had notice of such extension to be bound thereby, were, therefore, harmful error.
2. "Timber which had been cut pursuant to and during the term of the timber lease [the same lease as here involved] but not removed from the land became the property of the lessee, and it did not lose its title thereto merely because such timber was left on the defendant's property, and it could maintain a trover action to recover it, notwithstanding that the lease contract contained no express reservation of such right." Langdale Co. v. Day, 115 Ga. App. 30 (6b) ( 153 S.E.2d 671).
3. The allegations of the plaintiff's petitions were supported by uncontroverted evidence which demanded verdicts for the plaintiff on the issue of liability, leaving for the juries merely the question of the amounts of the damages. The court erred in its ruling denying the plaintiff's motion for a directed verdict on the issue of liability and in entering judgment on the verdict for the defendant in both cases. New trials are granted to determine the issue of damages.
Judgments reversed. Pannell and Quillian, JJ., concur.