Shirling v. Hester , 201 Ga. 706 ( 1946 )

1. Where, as in this case, the uncontradicted evidence establishes that the plaintiff has neither title nor possession, his action to enjoin an alleged trespass could not, as a matter of law, be sustained.

2. In order to recover damages for trespass, the plaintiff must have possession, or else he must have a good title. In this case the plaintiff had neither possession nor title, and the trial court properly directed a verdict for the defendants, both as to the prayers for injunction and the claim for damages.

Nos. 15643, 15646. NOVEMBER 13, 1946. REHEARING DENIED DECEMBER 2, 9, 1946. In Shirling v. Hester, 198 Ga. 862 (33 S.E.2d 4), this court affirmed the denial of an interlocutory injunction. Shirling, in his present bill of exceptions, complains of a judgment overruling his motion for new trial, as amended, assigning error on a verdict and judgment denying a permanent injunction, and damages for timber cut by the defendants. The original petition for injunction was based on alleged ownership of the premises described, cutting of timber, and trespass by the defendant, it being alleged that the trespass was "continuing" and the damages "irreparable." No insolvency was alleged. On the day before the verdict and judgment complained of, the plaintiff amended his petition, alleging that the defendants had cut and removed 107, 725 feet of lumber, of the value of $4308.80, from the lands described in his petition, and he prayed that he have judgment against the defendants in this sum. On the same date the court sustained, in part, the plaintiff's special demurrers to the answer of the defendants, to which judgment the defendants excepted pendente lite, and assign error here on a cross-bill of exceptions. The general demurrer of the plaintiff to the defendant's answer was overruled, and there is no exception to this judgment. By intervention, Will Williams, his wife, Pearl Williams, and Fort Brothers, a corporation, were duly named as parties defendant by order of the court, and the action proceeded against them and Hester, the original defendant named by the plaintiff.

The answer alleged: that, at the time of the execution of the timber "lease" from Will Williams to Richardson (Shirling's claim being based on a transfer from Richardson), there were of record two security deeds conveying the same property, one to the Land Bank Commissioner to secure an indebtedness of approximately $1500, and another to Fort Brothers Inc. to secure an indebtedness of approximately $1200, and that Fort Brothers held both instruments for value; that the plaintiff and his son-in-law Richardson had actual knowledge of the deeds; that it was agreed that the plaintiff would pay off Fort Brothers and take a security deed from Williams for amounts paid by the plaintiff over the stipulated amount to be paid for the timber; and that the plaintiff never took up the security deeds held by Fort Brothers. The answer further set up a claim by Pearl Williams to a half interest in the lands in dispute. For these and other reasons the defendants alleged that Shirling's claim under the timber lease held by him was a cloud on their title, and they prayed that it be canceled.

On the trial the plaintiff offered testimony to prove his allegations as to the amount and value of the timber removed. Richardson, grantee in the lease from Williams, testified: He did not receive anything from Shirling for the transfer of the lease to him, and did not pay Williams anything for the lease. Williams and his wife brought out a number of papers at the time, and Pearl Williams told him about the deeds to the Land Bank Commissioner and Fort Brothers. He further testified that he never took up the indebtedness represented by the deeds then held by Fort Brothers, and never talked to Fort Brothers about doing so, but that "the agreement was I was to pay it." Shirling testified in part that during the negotiations "the negro said he owed about $1500 to the Federal Land Bank and to Mr. Arthur T. Fort a mortgage of $1200, and he wanted to sell his timber and apply that on it." He had testified previously that "we could not buy the timber without the executions or mortgages were paid off; we were going to help him pay it so we could get a clear title to the timber." He further testified that he had counsel to examine the deed records, and that counsel advised him as to the security deeds, and that "I have never been to any of the Fort Brothers, . . I know Mr. Fort, I have never been to ask him how much it was [Williams' indebtedness]." The plaintiff introduced in evidence the "lease" from Williams to Richardson, dated November 2, 1943, and transferred by Richardson to him. The defendants offered in evidence the duly recorded transfer to Fort Brothers by the Land Bank Commissioner of the deed from Williams, the transfer being dated February 4, 1942. They also introduced the deed to Fort Brothers to secure an indebtedness of $1265.73, dated April 13, 1940. The description in both deeds covers the lands described in the petition. There was evidence to support the claim of Pearl Williams that she owned a one-half undivided interest in the property of Williams, on which the plaintiff claimed title to the timber. There was other evidence for the defendants, including the testimony of J. T. Humber, clerk of the superior court, as to the alleged tender made by Shirling. The check attached to the tender (which tender contained four alternate conditions, as shown by the opinion inShirling v. Hester, supra), was signed: "Alexander Bland by H. W. Bland." The clerk testified: "I issued a check on February 17, 1945, for that money to Alexander Bland, and it is marked as tender refund on the check; Mr. Bland, the man that put that money up on that tender, came and withdrew it and I paid it to him on February 17, 1945." 1. Timber growing upon land is a part of the realty. Coody v. GressLumber Co., 82 Ga. 793 (10 S.E. 218); Balkcom v. EmpireLumber Co., 91 Ga. 651 (2) (17 S.E. 1020, 44 Am. St. R. 58);Pritchett v. Davis, 101 Ga. 242 (28 S.E. 666, 65 Am. St. R. 298); Foy v. Scott, 197 Ga. 138 (28 S.E.2d 107). "A deed to land to secure a debt is an absolute conveyance until the debt is paid, and passes the title to the land and the timber growing thereon to the vendee therein." Ponder Co. v. MutualBenefit Life Ins. Co., 165 Ga. 366 (140 S.E. 761). See alsoWest v. Bennett, 59 Ga. 509; Kirby v. Reese, 69 Ga. 452;Citizens Bank of Moultrie v. Taylor, 155 Ga. 416 (117 S.E. 247); Gilliard v. Johnston, 161 Ga. 17 (129 S.E. 434). But were the rules different to the extent that a deed to secure debt conveyed only an equity in the land, the plaintiff here would still be bound by the two deeds outstanding at the time he acquired his "lease." "He who takes with notice of an equity takes subject to that equity." Code, § 37-115. The plaintiff's testimony, that "We could not buy the timber without the executions or mortgages [deeds to secure debt] were paid off, we were going to help him pay it so we could get a clear title to the timber," clearly shows that the plaintiff not only knew of the existence of the security deeds, but he testified that unless he paid them off, he could not acquire title to the timber. In this case the plaintiff had both actual and constructive notice of the prior deeds to secure debt, and his evidence disproves his claim of legal title to the timber for which he sued.

Under the Code, § 55-204, it is not necessary to aver or prove insolvency or that damages will be irreparable in applications to enjoin the cutting of timber for sawmill purposes, provided "the petitioner shall have perfect title to the land upon which the timber shall be situated, or shall have perfect title to the timber on any lands." The perfect title referred to in the above Code section was construed by this court in Payne v. Nix,193 Ga. 4, 7 (17 S.E.2d 67), where many decisions are cited which are authority for the rulings here made. The timber contract made by Williams, and held by the plaintiff, did not purport to convey any title to the land upon which the timber was situated, and the plaintiff was never in possession of the land or timber. Whether or not Williams could part with his right of possession (remaining in him until default and foreclosure of the security deeds) for any purpose that might diminish the security of Fort Brothers under their prior deeds, is a question that need not be ruled upon here, since a deed to secure debt passes the legal title to land and the timber thereon, and Williams did not convey, and could not convey, the legal title to the timber as claimed by the plaintiff.

Apparently the plaintiff now relies upon a claim of equitable title, for after his suit was filed he filed a tender stating four alternate conditions, with a check attached, on which was written: "For tender to Fort Brothers Inc., Lumpkin, Ga., for Will Williams security deeds, on conditions shown in tender filed herewith." The check was payable to the clerk of the superior court and signed "Alexander Bland by H. W. Bland." The filing of the alleged tender further disproved the plaintiff's allegations as to legal title, since, if he had title to the timber as he had alleged, there would be no good reason for him to take up the security deeds on the land, held by Fort Brothers. Alexander Bland appear to be strangers to this litigation, and it does not appear by what authority they proposed to act. But it is unnecessary that we now make any ruling touching this question, or the fact that the alleged tender was not made until after the suit was filed, or the further fact that the proposed tender was withdrawn by Bland a year and two months before the case was tried, and therefore was not continuous (seeDurham v. Crawford, 196 Ga. 381, 389 (5), 26 S.E.2d 778), since this court in Shirling v. Hester, supra, held adversely to the plaintiff's contentions as to the sufficiency of the alleged tender, and that ruling became the law of this case. "A decision by the Supreme Court is controlling upon the judge of the trial court, as well as upon the Supreme Court when the case reaches that court a second time. The principle in the decision may be reviewed and overruled in another case between different parties, but as between the parties the decision stands as the law of the case, even though the ruling has been disapproved by the Supreme Court in a case decided before the second appearance of the case in that court."Western A. R. Co. v. Third Nat.Bank of Atlanta, 125 Ga. 489 (54 S.E. 621). See alsoSanderlin v. Sanderlin, 27 Ga. 334, Norton v. ParagonOil Can Co., 105 Ga. 466 (30 S.E. 437), Allen v.Schweigert, 113 Ga. 69 (38 S.E. 397), and Georgia Ry. Power Co. v. Decatur, 153 Ga. 329 (111 S.E. 911), where this court held: "A judgment of a trial court granting or refusing an injunction, where the same depends upon a question of law, is, upon its affirmance by the Supreme Court, a final adjudication of such question."

Thus we find that the question as to the validity of the alleged tender, and for that matter as to the injunction itself, has been ruled upon adversely to the plaintiff in error and is now the law of this case, by the former decision of this court affirming the judgment of the court below in denying the injunction.

2. The plaintiff in error seemingly concedes that the former judgment on the issue as to injunction precludes a judgment favorable to him now on this issue, but he contends that he should recover on his claim for damages. He was not in possession of the land at the time when he filed his action, and under his own admissions he did not have legal title to either the land or the timber. His tender, upon which he relies for an "equitable" title, has heretofore been finally adjudicated as insufficient. See Shirling v. Hester, supra. Had the plaintiff proved his contentions as to title, he might properly insist on his claim for damages, but he has shown no such interest in the property described in his petition as will support an action for damages.

In Whiddon v. Williams Lumber Co., 98 Ga. 701 (25 S.E. 770), it was held: "Under our Code, in order to recover damages for trespass upon land, the plaintiff must have possession, or else must have a good title to the land. . . In order to bring himself within the statute, a plaintiff out of possession must show himself the true owner, and this he can only do by showing a good title." See also Moore v. Vickers, 126 Ga. 42 (54 S.E. 814); James v. Riley, 181 Ga. 454 (2) (182 S.E. 604). The plaintiff failed to show either a legal or an equitable title to the timber in question, and the court properly directed a verdict for the defendants. Whether or not the verdict directed for Pearl Williams was demanded, or even authorized, by the evidence, is not properly before this court for determination, since no interested party has excepted thereto. Shirling can not attack it, as he has no title to the land or the timber thereon, and is in no wise affected thereby. It follows that the judgment of the court below must be affirmed, and the cross-bill of exceptions dismissed.

Judgment affirmed on the main bill of exceptions. Cross-billdismissed. All the Justices concur, except Duckworth, J., whodissents.

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