The petition, showing an agreement with one of the two executors to sell timber belonging to the estate, and that in execution of the agreement he signed a deed conveying the timber and sent it to the non-resident executor to sign and mail to a bank with a draft for the purchase-price attached, the purchaser to have the conveyance delivered to him upon paying the draft, but that the non-resident executor ordered the bank to withhold the deed before the draft was paid, stated no cause of action for specific performance or damages. It was not error to dismiss the petition on general demurrer.
No. 14725. NOVEMBER 30, 1943.
The amended petition of Josephine H. Foy as executrix of J. P. Foy, deceased, against L. C. and J. L. Scott as executors of the will of H. L. Scott, alleges that the will of H. L. Scott empowered the executors to make private sale of his property for distribution; that all the remaindermen under the will of H. L. Scott except J. L. Scott, one of the executors, signed an agreement authorizing R. F. Bishop, a timber broker, to sell the described timber to J. P. Foy for $8000, provided Foy would pay Bishop's charges, which Foy agreed to do and did do by paying $100 on January 9, 1943; that thereafter a deed conveying the timber to Foy was signed by L. C. Scott, and forwarded by him to J. L. Scott, a resident of Missouri, for his signature, with the understanding and agreement that after J. L. Scott had signed the deed he would sent it by mail to First National Bank at Marietta, Georgia, with draft attached in the sum of $8000, for delivery to the buyer on payment of the draft. The deed was so signed, and with draft attached was sent to the First National Bank, but Sam E. Scott, one of the remaindermen, became dissatisfied, telephoned J. L. Scott, not to sign the conveyance, and thereupon J. L. Scott wired the bank instructing it to withhold delivery of the conveyance. Foy immediately went to the bank and tendered $8000, which was rejected by the bank because of the instructions given by J. L. Scott. Suit was then filed by Foy against the defendants and the bank, seeking specific performance, and an injunction restraining the bank from returning the conveyance. Foy died, and by proper order of the court his executrix was made a party in his stead. The defendants filed general demurrers. The plaintiff amended the petition, seeking the recovery of $1000 damages if performance was not decreed. *Page 139
The demurrers were renewed to the petition as amended, and on August 20, 1943, the court sustained the general demurrers, with the exception of ground 1 which asserted that there was a non-joinder of parties, and dismissed the petition. The plaintiff excepted.
Standing timber is realty. Code, § 85-201;Corbin v. Durden, 126 Ga. 429 (55 S.E. 30); Warren v.Ash, 129 Ga. 329 (3) (58 S.E. 858); Sirmans v. MilltownLumber Co., 130 Ga. 82 (60 S.E. 267). Sale of standing timber must, therefore, be in writing. Code, § 29-101; Coody v. GressLumber Co., 82 Ga. 793 (10 S.E. 218); Baucom v. PioneerLand Co., 148 Ga. 633 (97 S.E. 671); Cherry Lake Co. v.Lanier Armstrong Co., 10 Ga. App. 339 (3) (73 S.E. 610). Delivery is essential to passing of title by such deed. Code, § 29-101; Buffington v. Thompson, 98 Ga. 416 (25 S.E. 516);Brown v. Story, 94 Ga. 288 (21 S.E. 522); Story v.Brown, 98 Ga. 570 (25 S.E. 582); Kesler v. Verner,161 Ga. 118 (129 S.E. 843); State Banking Co. v. Miller,185 Ga. 653 (196 S.E. 47); First National Bank of Gainesville v.Harmon, 186 Ga. 847 (4) (199 S.E. 223); Moore v. Moore,188 Ga. 303, 306 (4 S.E.2d 18). Delivery of a deed to another, to be delivered on certain conditions to the grantee, is in escrow. Code, § 29-105. But the second delivery by the escrowee to the grantee, and not the first by the grantor to the escrowee, is the one rendering the conveyance valid and complete and under which title passes. Wellborn v. Weaver, 17 Ga. 267,274 (12). Therefore, waiving for the present all questions as to whether in the present case the absence of an agreement by the bank to hold the timber conveyance in escrow prevented its being in escrow, we still have no passing of title under the deed, since there has been no second delivery. But if the plaintiff seeks to stand upon an agreement which would prevent J. L. Scott from forestalling delivery, then she is confronted with the fact that he was never a party to that agreement. Although the petition contains allegations of previous agreements with L. D. Scott, it makes no claim whatever that J. L. Scott ever made such agreements or in any wise became bound thereby. It necessarily follows that the verbal agreements conferred no right in the timber upon the plaintiff's intestate. *Page 140
Nor did they impose any obligation upon the non-resident executor. The written deed conveying the timber was never delivered, and hence, did not become effective, and J. L. Scott was within his rights when he refused to allow the bank to deliver it. The bank is bound to comply with his orders in this regard. The petition alleged no cause of action, and was properly dismissed on general demurrer.