Morgan et al. v. Perkins, administrator

Supreme Court of Georgia1894-08-29

94 Ga. 353

Summary · law.co

Holding. The court reversed the judgment and remanded for a new trial, directing that the retrial be limited to determining whether the timber in dispute was cut before or after any extended deadline agreed upon between Morgan and Perkins's administrator.

In 1885, Morgan sold to Perkins the right to cut and remove saw-timber from Morgan's land, with a deadline of December 25, 1886. Perkins died before fulfilling the obligation, and his administrator later sold the uncut timber to Thompson & Company. Morgan claimed that the failure to cut the timber by the original deadline meant the purchaser forfeited all rights to enter the land and remove it, and that Thompson & Company therefore committed trespass. The court rejected this argument, holding that because standing timber constitutes real property rather than personal property, the conveyance granted the purchaser a real estate interest that could only be divested by failing to remove the timber within the agreed timeframe.

The critical issue became whether Morgan had orally extended the cutting deadline with Perkins's administrator. The court determined that if such an extension occurred, it replaced the original deadline with a new one. Under these circumstances, the administrator and Thompson & Company would have the right to enter and remove the timber so long as they did so before the new deadline expired. The controlling question for retrial was therefore whether the timber that became the subject of litigation was actually cut before or after the extended deadline.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether standing timber constitutes real or personal property
Whether failure to remove timber by a contractual deadline forfeits all rights to the timber
Whether an oral extension of a removal deadline, agreed between the original seller and the purchaser's successor, supersedes the original deadline

Procedural posture

Morgan brought an action against Perkins's administrator seeking damages for alleged trespass committed by Thompson & Company in cutting and removing timber from Morgan's land.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Simmons, Justice.

In February, 1885, Morgan sold to Perkins all the saw-timber measuring twelve inches and over in diameter at the stump on lot of land number 93 in Pulaski county, and a conveyance of the timber was made in writing, in which it was stipulated that the timber was to be cut off the land by December 25th, 1886. Perkins died before that time, and his administrator sold the timber that had not been cut to Thompson & Company. Morgan, the vendor, is not concerned with the question whether Thompson & Co. cut and appropriated the timber as purchasers, or only as licensees. If they cut the timber within the time agreed upon, it was the same thing to Morgan as if the administrator had cut it by himself or his servants. If he had sold it and received payment for it, it made no difference to him whether the administrator cut it, or whether Thompson & Company cut it, if it was cut in the stipulated time.

As before stated, it was stipulated in the writing conveying the timber that it would be cut and removed by the 25th of December, 1886. Perkins having died prior to that date and the timber not having been cut and removed, Morgan entered into a parol agreement with the administrator, extending the time for its cutting and removal. The evidence seems to be conflicting as to the length of time the privilege was extended, Morgan insisting that it was cut and removed after the time had expired, and the administrator of Perkins contending that it was cut and removed within that time, and that whether it was or not, it made no difference, as he had a right to cut and remove it after the time agreed on had expired. Morgan contends that the timber not having been cut within the time agreed upon, the administrator forfeited his right to enter upon the land and cut and remove the timber, and that when Thompson & Co. did so they committed a trespass, and are liable to him (Morgan) in damages. The courts in some of the States have held that where standing timber is sold, and a time is agreed upon in which it is to be removed, and it is not removed within the time agreed upon, the purchaser does not lose his right, after the expiration of that time, to enter upon the land and remove it. See Hart v. Stratton Mills, 54 N. H. 109, 20 Am. Rep. 119; Irons v. Webb, 12 Vroom, 203, 32 Am. Rep. 193. These rulings are based upon the ground that standing timber is personalty and not realty. If it is personalty, these decisions are right; but this court has held that standing timber is not personalty, but realty. Coody v. Gress Lumber Company, 82 Ga. 793, 797. The timber being realty, the purchaser acquires by the written conveyance an interest in the laud subject to be divested if he fails to remove the timber within the time limited by the conveyance. This is a limitation upon the estate granted, and if the timber is not removed within the time prescribed in the limitation, the estate terminates. On this subject see: McIntyre v. Barnard, 1 Sandf. Ch. 52; Boisaubin v. Reed, 2 Keyes (N. Y.), 323; Pease v. Gibson, 6 Me. 84.

If the time limited in the conveyance had expired, and Morgan, the seller, agreed orally or in writing with the administrator to extend the time, this waiver on the part of Morgan of the first limitation, and the new limit agreed on between him and the administrator, took the place of the former one (Colcord v. Carr, 77 Ga. 105); and if the administrator or his vendees. cut and removed the timber within the time fixed by the new limit, they would not be liable to Morgan for a trespass. Morgan, having assented to the extension of the time, cannot complain of their entering upon his land and cutting and removing the timber. If, however, they entered upon the land after the new limit expired, they would be liable to him. This seems to be the controlling question left in the case, viz: whether the fund in court was produced by timber cut before the new limit expired, or not until afterwards. Let the new trial as to the ownership of the fund be confined to the detérmination of this question.

Other questions in the case are ruled by the head-notes. Judgment, reversed, with direction.