JOHNSON v. DAVIS., 213 Ga. 899, 102 S.E.2.d 571 (1958)
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Summary
Judgments reversed. All the Justices concur, except Wyatt, P. J., who dissents.
Summary
Judgments reversed. All the Justices concur, except Wyatt, P. J., who dissents.
Text
Pittman & Greene, for Gainer and Johnson.Matthews, Maddox, Walton & Smith, for Rome Kraft Company.
In this litigation, which was instituted by J. L. Davis against Rome Kraft Company, B. N. Nations, J. G. Gainer, Leon Johnson, C. E. Wilkey, and James Montgomery, the petition, in substance and so far as need be stated, alleges: On November 27, 1953, for the purpose of securing a loan to him of $5,400, B. N. Nations conveyed a described tract of land in Bartow County, Georgia, to State Mutual Insurance Company. On March 29, 1956, this grantee transferred its security deed, together with all rights, remedies, and powers therein contained, to Calhoun National Bank. Simultaneously with such transfer, it also conveyed to the bank its title to the land described in the security deed. On April 3, 1956, Calhoun National Bank made a like transfer of the same security deed and a like conveyance of the land described therein to the plaintiff J. L. Davis. While State Mutual Insurance Company and Calhoun National Bank were the holders of the aforementioned security deed, and after it had been duly recorded in the public records of Bartow County, Georgia, the defendants on specified dates wrongfully cut, removed, and converted to their own use 200 units of pulpwood from the land described therein; and by such trespasses injured and damaged the plaintiff in the sum of $4,000, for which amount he sues. Separate but like general demurrers were interposed to the petition by the defendants Rome Kraft Company, J. S. Gainer, and Leon Johnson; and to a judgment sustaining the demurrers and dismissing the petition, the plaintiff excepted and sued out a writ of error to the Court of Appeals. That court in reversing the judgment complained of held that the plaintiff Davis could, to the extent of the unpaid balance of the secured debt, recover the value of any timber which the defendants had wrongfully taken from the land in question while title for it was held by State Mutual Insurance Company and by Calhoun National Bank under the recorded security deed from B. N. Nations, which had been transferred to him after the commission of such trespasses; and since his petition stated a cause of action for the relief sought, namely, damages, that the trial judge erred in dismissing it on general demurrer. An application to this court for the writ of certiorari assigns error on that ruling, and the writ was granted for the purpose of reviewing it. Held:
By the terms of an act which the legislature passed in 1939 (Ga. L. 1939, p. 340), from which Code (Ann.) 105-1412 comes, any person who is the owner of legal title to land or an interest in land as security for debt, as shown by the public records of the county where such land is located, may maintain an action for damages against every person, firm, or corporation that buys, sells, cuts, removes, holds, disposes of, changes the form of, or otherwise converts to his own use any trees growing or grown on the pledged land without such owner's written consent; but the damages recoverable as the value of such timber cannot be more than the unpaid portion of the secured indebtedness, the interest thereon, and a reasonable attorney's fee. And in this State a right of action which involves, directly or indirectly, a right of property is assignable. See Code 85-1805; Sullivan v. Curling,
Marion W. Corbitt, John W. Maddox, William B. Greene, for Davis.
1958
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