Beecher v. Newton , 157 Ga. 113 ( 1923 )

Hines, J.

(After stating the foregoing facts.)

Where the owner sells and conveys lands to another by a warranty deed and takes from the latter a contemporaneous deed to the same to secure the entire purchase-money, does a provision. in the security deed, wherein the maker agrees that any and all moneys received from the sale of turpentine or timber on said lands prior to the payment of the note first falling due, and given for part of the purchase-money, shall be paid to the seller and be credited on said note, authorize the maker of the security deed to sell and convey these lands to a third person so as to defeat the title of an assignee of his grantor to the timber thereon, where such grantor did not join in the sale, did not receive any part of the purchase-money paid by such third person to the vendor in the security deed, and did not consent to such sale, otherwise than by taking the security deed with the above provision in it? In other words, did the vendor in the security deed,"by this provision, reserve to himself the authority to sell the turpentine and timber upon the lands therein embraced, and in the exercise of this power did he convey the timber and the right to work the same for turpentine to the purchaser from him of these lands? A power is an authority enabling one person to dispose of an interest which is vested in another. Burleigh v. Clough, 52 N. H. 267 (13 Am. R. 23). It may be granted or reserved either expressly or impliedly. Fletcher v. American Trust &c. Co., 111 Ga. 300 (36 S. E. 767, 78 Am. St. R. 164); 31 Cyc. 1044, note 48. This provision declares that all moneys received from the sale of turpentine or timber shall be paid to the grantee in the security deed. This language necessarily implies that the grantor in the security deed reserved to himself the.power to sell the turpentine and timber on these lands. It refers in so many words to a sale of these things. Besides, he reserved the right to receive the money arising from the sale of these articles. The language, “any and all moneys received from sale of turpentine or timber,” means moneys received by him. If it.does not mean this, it would not have been necessary to provide that they shall be paid to the grantee in the security deed. So we reach the conclusion that the grantor in the security deed reserved to himself the power to sell the turpentine and timber, and to receive the moneys paid for their purchase, subject to the trust imposed on him to pay them to his grantee, and have them applied to the payment of his note-for the purchase-money of the lands first falling due.

Did the grantor in the security deed exercise this power by his sale and conveyance of these lands to Fleming? The timber growing thereon was part of the realty. Coody v. Gress L. Co., 82 Ga. 793 (10 S. E. 218); Corbin v. Durden, 126 Ga. 429 (55 S. E. 30). So, his conveyance of these lands was as much a conveyance of the timber thereon as the soil in which the timber was growing. Clearly, this sale of the ground was subject to the security deed. Was it the intention of the grantor to sell the soil subject to his security deed and the timber free from that deed? The vendor in the security deed had an interest in these lands and the timber on' them, and a power over the timber; and his conveyance of the lands, without reference to the power, and without mention of the timber, will be applied to the interest and not to the power, in the absence of circumstances showing a different intention. Terry v. Rodahan, 79 Ga. 278 (5 S. E. 38, 11 Am. St. R. 420); New England Mortgage Sec. Co. v. Buice, 98 Ga. 800 (26 S. E. 84); Middlebrooks v. Ferguson, 126 Ga. 232 (55 S. E. 34); Mahoney v. Manning, 133 Ga. 748 (56 S. E. 1082). Here there is no reference to the power, there is no mention of the timber, which is the subject-matter of the power, and the instrument can have effect and operation without regard to the power. There are no other indicia which make plain the intention of the grantor to sell and convey the timber under his reserved power in the security deed. Considering all the circumstances, the intention is doubtful, and this doubt will prevent the instrument from being deemed an execution of the power. 21 E. C. L. 795, § 28. So we are of the opinion that the deed from McCrackin to Fleming was not an exercise of this power, and did not have the effect of conveying the timber on these lands to Fleming free from the incumbrance of the security deed. This being so, those under whom the defendant claims title to the timber did not have title thereto, but the title thereto passed to the purchaser of these lands under the sale thereof had under the power of sale in the security deed, and became vested in the plaintiff under his deed from said purchaser.

This conclusion makes it unnecessary to decide other questions raised in the record.

Judgment affirmed.

All the Justices concur.