Graham v. West

55 S.E. 931, 126 Ga. 624, 1906 Ga. LEXIS 487

• Court: Supreme Court of Georgia
• Decided: November 9, 1906
• Status: Published

Opinion

Evans, J.

(After stating the facts.) The sale of standing timber, where the contract contemplates that the growing trees are to remain in the soil for a fixed timé or indefinitely, at the pleasure of the vendee, concerns an interest in the land. Moore v. Vickers, ante, 42. On the other hand, the prevailing rule seems to be that if the trees sold are to be immediately severed from the soil and carried away, and are not to be left to grow and attain additional strength from the soil, the sale is that of personal property, and not of an interest in land. Benj. Sales (7th ed., Bennett’s), 133. The evidence reveals that the thing sold was “wood on a certain lot of land, said land known as the McDade land.” “Trees” and “wood” are not synonymous terms; the latter refers to the substance of the former when cut for use. The old maxim is: “Arbor dum crescit, lignum cum crescere neseit” — a tree while it grows, wood when it cannot grow, that is, when it is cut down. Clearly, from this description of the subject-matter of the sale, it was contemplated by the parties that the timber was to be cut or converted into wood; and when so converted into the chattel state, title thereto was to pass to the purchaser. An agreement for the sale of property attached to the soil, but which is to be severed therefrom and converted into personalty before the property is to be transferred to the purchaser, is an executory sale of goods. Smith v. Surman, 9 B. & C. 561; Claflin v. Carpenter, 4 Met. 580. The thing sold'under the contract of sale was wood, was personalty; and the purchase-price could be collected by means of an attachment for the purchase-money, foreclosed in a justice’s court, and this court has jurisdiction to try issues'arising from the interposition of a defense to the attachment. The proof sufficiently identified the wood for which the purchase-money was due as the property levied upon under the attachment.

Judgment affirmed.

All the Justices concur.