Sirmans v. Milltown Lumber Co. , 130 Ga. 82 ( 1908 )

Atkinson, J.

The plaintiff claims under a deed from J. W. Smith. It was shown that at the time of the execution of the deed under which the plaintiff claims, he had notice of a prior deed executed by his grantor to Moses G. Sirmans, through whom the defendant claims. The prior deed was an ordinary warranty deed conveying land, but reciting: “It is especially understood that the sawmill privileges is sold from fourteen inches up.” This recital does not suggest an intention to reserve any interest. Whatever may be said of the effect of the recital upon the subject of notice to the grantee that a sale of the timber had been made to some one else, it does not purport to reserve to the grantor the timber or any reversionary interest therein. The timber is a part of the land (see Corbin v. Durden, 126 Ga. 429 (55 S. E. 30)) ; and a conveyance of the land, without any reservation, conveys •the timber growing thereon. By resorting to the deed as a whole to ascertain the intention of the parties, the deed should be construed as conveying to the grantee, Moses B. Sirmans, the entire property, subject only to the rights of the vendee of the timber, of which the recital gave notice. Any reversionary interest in the timber, after the exhaustion of all rights of the prior vendee, would inure to the benefit of Moses B. Sirmans and those holding under him, and not to the grantor, Smith. .Giving this deed this construction, the plaintiff’s grantor, Smith, by force thereof, had parted ■with all interest in the timber; and his subsequent conveyance-to the plaintiff, which is relied upon as a source of title to support the petition for injunction, conveyed nothing, for the manifest reason that the plaintiff knew of the prior conveyance and Smith could not convey that which did not belong to him. There was nothing to impeach the prior deed, and the plaintiff showed no title upon which to rely for injunction.

Judgment affirmed.

All the Justices concur, except Holden, J., who did not preside.