Sohr v. Carpenter

Deen, Chief Judge.

Carpenter, the holder of a security deed, brought an action against Sohr, the grantor hereunder and holder of the warranty deed, contending that the defendant had cut timber on the property which was the subject matter of a security deed in violation of Code Ann. § 105-1412. Upon learning that the timber was cut by Handley, Carpenter amended his complaint to state a cause of action for cutting timber against him. Plaintiff them moved for summary judgment. The trial court granted the motion for summary judgment against Sohr and in favor of Handley. Sohr and Carpenter appeal.

1. In the suit Carpenter brought against Sohr, the trial court did not err in granting summary judgment in favor of the plaintiff. Cordele Sash &c. Co. v. Prudential Ins. Co., 86 Ga. App. 738 (72 SE2d 497) (1952). There is no evidence to show that the plaintiff had knowledge that the timber was being cut and should therefore be estopped to deny that he had given his consent. Consent to clear the land for pasture is envisioned in the act because Code § 105-1412 permits the purchaser to “... use said timber for his own use, such as firewood or other necessary uses of timber in and around said farm.” The act, however, clearly protects the holder of the security interest from the commercial sale of timber by the record title holder.

Submitted September 8, 1980 Decided October 16, 1980. John M. McCarter, for appellant (case no. 60395). Thomas E. Greer, Ellwood F. Oakley, III, Richard G. Tisinger, for appellees. Ellwood F. Oakley, III, for appellant (case no. 60396). Richard G. Tisinger, John M. McCarter, for appellee.

2. The trial court, however, erred in granting summary judgment in favor of Handley. In Davis v. Rome Kraft Co., 96 Ga. App. 450 (100 SE2d 473) (1957), this court held that under Code § 105-1412 the holder of a security deed had a valid cause of action against not only the defendant who had cut the timber, but also against the purchaser of the timber.

Case no. 60395 is affirmed, and case no. 60396 is reversed.

Birdsong and Sognier, JJ., concur.