Flowers Lumber Co. v. Bush

Bboyles, J.

1. In this State a security deed passes legal title to land (Civil Code, § 3306), and where, as in this case, the leasehold of the plaintiff is under one who, by making a security deed to his creditor, has divested himself of the legal title, and the plaintiff has no more than a mere possession of the land upon which the trespass is alleged to have been committed, he can not maintain his action for damages to the realty. See Morris v. McCamey, 9 Ga. 160; Hitch v. Bailey, 115 Ga. 891 (42 S. E. 252).

2. The evidence demanded a finding that the legal title to the property, upon which the defendant was alleged to have cut timber which was being boxed for turpentine by the plaintiff, was not in the person from whom the plaintiff had leased the turpentine privilege, but, on the contrary, was, by deeds duly recorded, vested in one S. P. Holland, from whom the defendant lumber company had leased the timber-cutting privilege, and that the plaintiff had no legal interest whatever in the land or the timber thereon.

3. The court erred in overruling the motion for a new trial.

Judgment reversed.