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DAVIS v. ROME KRAFT COMPANY et al.
36820.
Tort; removal of timber. Before Judge Mitchell. Bartow Superior Court. June 5, 1957.
GARDNER, P.
Where, as here, a petition alleges a plaintiff to be the assignee of a security deed, together with all the rights, remedies and powers thereby assigned, such petition states a cause of action in the plaintiff for recovery of the value of the timber cut from such lands conveyed, to the extent of the unpaid secured debt.
This is an action for damages for the recovery of the value of timber cut and removed from certain lands of J. L. Davis, hereinafter called the plaintiff. The petition, omitting the formal parts, reads as follows: "1. Defendant Rome Kraft Company is a foreign corporation domiciled in the State of Delaware and registered in Georgia with the office of the Secretary of the State of Georgia as a corporation authorized to do business in this State, and has designated W. Charles LeShanna as its agent for service of process whose address is Healey Building, Atlanta, Georgia, and is subject to the jurisdiction of this court by virtue of the fact that it is named herein as a joint defendant along with the other named defendants herein.
"2. J. S. Gainer is a resident of Newton County, Georgia, and is subject to the jurisdiction of this court by virtue of being named herein as a joint defendant along with the other named defendants herein.
"3. Leon Johnson was a resident of the State of Louisiana at the time the attachment hereinafter referred to was sued out and levied and is subject to the jurisdiction of this court by virtue of said attachment proceedings; and this defendant is now residing in Floyd County, Georgia; and is also subject to the jurisdiction of this court by virtue of being named as a joint defendant along with the other named defendants herein.
"4. B. N. Nations is a resident of Floyd County, Georgia, and is subject to the jurisdiction of this court by virtue of being named as a joint defendant herein along with the other named defendants herein.
"5. Defendants C. E. Wilkey and James Montgomery are residents of Bartow County, Georgia, and are subject to the jurisdiction of this court by virtue of this fact.
"6. Defendants have injured and damaged plaintiff in the sum of $4,000 by virtue of the facts hereinafter alleged.
"7. Plaintiff shows that in order to enforce the collection of his claim for damages as hereinafter alleged, that he did on the 3rd day of April, 1956, sue out before the Honorable S. R. Atwood, a justice of the peace in and for Bartow County, Georgia, an attachment against one of the defendants named herein, Leon Johnson, said attachment being returnable to the April term, 1956, of Bartow Superior Court, which attachment was levied by Jim Wheeler, a deputy sheriff of Bartow County, Georgia, upon the property of said defendant, said property being described as follows, to wit: One Model TD-6 International Harvester diesel caterpillar tractor with serial 37959; and three pieces of equipment used in the cutting and hauling of pulpwood.
"8. Plaintiff files this suit for damages against all of the named defendants herein, and designates the same and files this petition as his declaration in attachment in the attachment proceedings of J. L. Davis v. Leon Johnson hereinabove referred to.
"9. Plaintiff shows that on the 27th day of November, 1953, defendant B. N. Nations executed a security deed to State Mutual Insurance Company, a corporation with executive officers at Rome, Georgia, to secure the principal sum of $5,400, conveying as security for said debt the following described land in Bartow County, Georgia, to wit: [Here follows a description of the land.]
"10. Plaintiff shows that defendant B. N. Nations failed and refused to pay the debt secured by the security deed to State Mutual Insurance Company and that during the month of March, 1956, State Mutual Insurance Company had advertised said property for sale under the terms of said security deed; that on the 29th day of March, 1956, for value received State Mutual Insurance Company conveyed all of said lands with the security deed and all of the rights, remedies and powers therein contained, to the Calhoun National Bank of Calhoun, Georgia; that for value received the Calhoun National Bank on the 3rd day of April, 1956, conveyed the said lands together with the security deed and all the rights, remedies and powers therein contained to plaintiff, and that by virtue of these transfers plaintiff was subrogated to and held all of the rights, remedies and powers which were held under said security deed by State Mutual Insurance Company from November 27, 1953, down to the time said security deed was transferred to plaintiff herein.
"11. Plaintiff shows that by virtue of the instrument hereinabove set out and the transfers thereon that he held the legal title and an interest as security for debt on said property from the 27th day of November, 1953, and that up to the 3rd day of April, 1956, said indebtedness had not been paid by the defendant B. N. Nations.
"12. Plaintiff shows that sometime during the fall of 1955, the exact date being unknown to plaintiff, but well known to defendants Leon Johnson, C. E. Wilkey and James Montgomery, that these defendants did cut and remove from the lands hereinabove described and upon which plaintiff held the legal title certain pine trees of the value of $2,000, the same being approximately the equivalent of 100 units of pulpwood.
"13. Plaintiff shows that on or about the 30th day of March, 1956, that the defendants Leon Johnson, C. E. Wilkey and James Montgomery did cut and remove from the lands hereinabove described and upon which plaintiff held the legal title certain pine trees of the value of $2,000, the same being equivalent to approximately 100 units of pulpwood.
"14. Plaintiff shows that defendant J. S. Gainer through some arrangement which is unknown to plaintiff but is well known to defendant J. S. Gainer conspired with defendant Leon Johnson and defendant B. N. Nations to cut and remove the pine trees in units of pulpwood from said lands as hereinabove set out, and agreed with each other that said pulpwood in the nature of the pine trees would be removed from said lands, would be disposed of to Rome Kraft Company and would be converted to their own use in order to dispose of the same to Rome Kraft Company.
"15. Plaintiff shows that Rome Kraft Company through an arrangement with Leon Johnson and J. S. Gainer bought the said trees after the same were removed from said lands and after the same had been changed in form to pulpwood and converted said trees to its own use.
"16. Plaintiff shows that the number of pine trees removed from said lands constituted approximately 200 units of pulpwood, and as such was sold to defendant Rome Kraft Company by J. S. Gainer and Leon Johnson for a sum in excess of $20 per unit.
"17. Plaintiff shows that defendant Leon Johnson and J. S. Gainer procured the services of defendants James Montgomery and C. E. Wilkey for the purpose of aiding, assisting and abetting these defendants in cutting and removing the said pine trees from the lands of plaintiff and that the defendants James Montgomery and C. E. Wilkey did aid, assist and abet the defendants J. S. Gainer and Leon Johnson in cutting and removing said pine trees from the above described lands and in transporting them and in selling them to Rome Kraft Company.
"18. Plaintiff shows that none of said defendants had the permission of plaintiff or of State Mutual Insurance Company or of the Calhoun National Bank to cut, remove, sell, dispose of, buy, or change the form of the trees growing upon said lands and did not have the permission from either of these parties to sell said trees in any form to Rome Kraft Company, and Rome Kraft Company did not have the permission of any of these named parties to buy said trees in any form which were removed from said lands.
"19. Plaintiff shows that all during the times herein complained of when said trees were cut and removed and sold from said lands that either State Mutual Insurance Company, the Calhoun National Bank or plaintiff held the legal title to said lands and an interest in said lands as security for a debt, and that the same was shown by the public records of Bartow County, Georgia, where said lands were located.
"20. Plaintiff shows that all of the named defendants herein conspired with each other in the buying, selling, cutting, removing, disposition of, and in changing the form of, and in converting to the use of said defendants, the said trees growing upon the above described lands of plaintiff.
"21. Plaintiff shows that by the purchase of said security deed as hereinabove set out that he acquired all of the rights, remedies and powers contained in said security deed and the interest in and to the property conveyed and described therein.
"Wherefore, plaintiff prays: (a) That process issue requiring defendants, and each of them, to be and appear in the Superior Court of Bartow County, Georgia, as required by law to answer this complaint;
"(b) That second original do issue directed to the Sheriff of Fulton County, Georgia, so that copy and process may be served upon defendant Rome Kraft Company by service upon W. Charles LeShanna agent for service on said corporation, at his address in the Healey Building, Atlanta, Georgia;
"(c) That second original do issue directed to the Sheriff of Floyd County, Georgia, so that copy and process may be served upon defendant B. N. Nations and defendant Leon Johnson;
"(d) That second original do issue directed to the Sheriff of Newton County, Georgia, so that copy and process may be served upon defendant J. S. Gainer;
"(e) That plaintiff do have and recover of the defendants, and each of them, the sum of $4,000.
"(f) That plaintiff have a special lien and judgment against the property levied upon in the attachment and described in this petition, together with a general judgment against all of said defendants."
Rome Kraft Company, a defendant, filed the following demurrers: "1. Said petition fails to set forth a cause of action against this defendant.
"2. Said petition fails to show a right of action in the plaintiff.
"3. Said petition shows on its face that this court has no jurisdiction over the person of this defendant, because it is a nonresident of Bartow County, Georgia, and the State of Georgia, and its agent for service of process in the State of Georgia has his address in Atlanta, Georgia, and is subject to the jurisdiction of the Superior Court of Fulton County, Georgia, and said petition fails to set forth a cause of action or a right of action in plaintiff against the defendants C. E. Wilkey and James Montgomery, or either of them, the only defendants alleged to be residents of Bartow County, Georgia, and over whom this court has jurisdiction of the person.
"4. Said petition shows on its face that this court does not have jurisdiction of this case, because the facts alleged against C. E. Wilkey and James Montgomery, the only defendants who are alleged to be resident of Bartow County, Georgia, are insufficient in law to confer jurisdiction upon this court, the facts not setting out a cause of action against C. E. Wilkey and James Montgomery, or either of them."
Leon Johnson, a defendant, filed the following demurrers: "1. Said petition as a whole, nor do any of its several parts, set out a cause of action against this defendant.
"2. The petition of plaintiff shows that this court has no jurisdiction of this case for the reason that the facts alleged against C. E. Wilkey and James Montgomery are insufficient to set out a cause of action against either of them, and they being the only resident defendants of Bartow County, Georgia, who are joined herein, said petition fails to show jurisdiction in this court.
"3. Said petition shows that this court has no jurisdiction over the person of Leon Johnson because it does not set out a right of action in plaintiff against C. E. Wilkey or James Montgomery, joint or several, who are the only alleged resident defendants of Bartow County, Georgia, whose persons are subject to the jurisdiction of this court.
"4. The petition fails to set out a cause or right of action in plaintiff."
J. S. Gainer, a defendant, filed the following demurrers: "1. Said petition as a whole, nor do any of its several parts set out a cause of action against this defendant.
"3. Said petition shows that this court has no jurisdiction over the person of J. S. Gainer because he is a resident of Newton County, Georgia, and not Bartow County, Georgia, and is subject to the jurisdiction of Newton County, Georgia, Superior Court. Said petition does not set out a right of action in plaintiff against C. E. Wilkey or James Montgomery, joint or several, who are the only alleged resident defendants of Bartow County, Georgia, whose persons are subject to the jurisdiction of this court.
"4. The petition fails to set out a cause or right of action in plaintiff."
The court sustained demurrers 1, 2, 3, and 4 of all the defend ants, giving the plaintiff leave to amend within a certain time. The plaintiff did not amend. The case is before this court assigning error on the ruling sustaining the demurrers of the three defendants, and dismissing the petition.
J. It is the contention of the plaintiff that the only issue before this court is whether or not the petition is good as against a general demurrer filed by the three defendants. It will be noted that the petition alleges ownership and/or interest in the land or trees. The petition must be construed as a whole. See Pink v. A.A.A. Highway Express, Inc., 191 Ga. 502 (13 S. E. 2d 337). There are many other cases to the same effect. Counsel for the defendants quote Code (Ann.) 105-1412, which reads as follows: "Every person, firm or corporation, who, without the written consent of 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, buys, sells, cuts, removes, holds, disposes of, changes the form of, or otherwise converts to the use of himself, itself or another, any trees growing or grown on such land, shall be liable to such owner of such legal title for such trees or the value thereof, in any form, bought, sold, cut, removed, held, disposed of, changed in form, or otherwise converted by him or it: Provided that recovery may not be for more than the unpaid portion of the secured indebtedness, interest thereon, and a reasonable attorney's fee: Provided such recovery may be had by action at law from the purchaser or purchasers of such interest in the trees, mineral, or other rights or interest in said incumbered real estate, either jointly or severally, with the holder of the equitable title; the owner of said land shall be allowed to use said timber for his own use, such as firewood or other necessary uses of timber in and around said farm." Counsel contend that the suit could be brought only by the person who owned the land and trees or interest therein to secure debt at the time the conversion began.
Code 85-1805 provides that a right of action is assignable if it involved, directly or indirectly a right of property. That Code section, which changed the rule applicable at common law and accordingly applicable in this State prior to its passage, first appears in the Code of 1895. In Sullivan v. Curling, 149 Ga. 96 (99 S. E. 533, 5 A. L. R. 124) it is held that destruction of property in a tortious manner gives rise to a right of action; that such a right is assignable, and that a petition alleging that the plaintiff is the purchaser of "all the right, title and interest in and to the assets" of a certain business is a sufficient allegation that he is the assignee of the chose in action (as against general demurrer) as to allow the purchaser to bring an action in tort in his own name as plaintiff. That case further discusses Allen v. Macon, Dublin &c. R. Co., 107 Ga. 838 (33 S. E. 696), (upon which the majority opinion is predicated) and points out that the state of facts out of which that litigation arose occurred in 1893, prior to the enactment of Code 85-1805, and that the Allen case is not applicable to litigation arising after the enactment of that Code section. Again, in Evans v. Brown, 196 Ga. 634, 639 (27 S. E. 2d 300) it was held: "The deed by Evans to Lula Hunter, purporting to convey the entire estate in this land, appears to have been made after the breach by the defendants; and while such a conveyance would have been ineffectual at common law, and might even have destroyed the rights of the grantor, yet in this State any chose in action involving a property right may be assigned, and so the deed to Lula Hunter, as made after such breach, vested in her all the rights of her grantor as to this property, including the right of suit." Here the deed from Calhoun National Bank of Calhoun, Georgia, to the plaintiff vested in the plaintiff all of the rights of the grantor in the property involved, including the right to bring suit.
Under Code 105-1412 and the case of Cordele Sash, Door &c. Co. v. Prudential Ins. Co., 86 Ga. App. 738 (72 S. E. 2d 497), one who owns legal title to property under a security deed is entitled to recover in an action at law the value of timber cut off the land, and if it did not consent for the timber to be cut, regardless of whether the owner of the equity in the property sold the timber to the defendant and received payment therefor. In view of Code 105-1412 giving a cause of action to the holder of a security deed in his own right, and its interpretation in Cordele Sash, Door &c. Co. v. Prudential Ins. Co., supra, and in view of Code 85-1805 providing for assignment of a chose in action involving a right in property and its interpretation in Sullivan v. Curling, 149 Ga. 96, supra, it is our opinion that this petition which alleges that the plaintiff is the assignee of the security deed in question together With all the rights, remedies and powers therein contained states a cause of action in the plaintiff for recovery of the value of timber cut from the land conveyed in the security deed, to the extent of the unpaid secured debt.
Judgment reversed. Townsend and Carlisle, JJ., concur.
Matthews, Maddox, Walton & Smith, Pittman & Greene, contra.
Marion W. Corbitt, for plaintiff in error.
DECIDED SEPTEMBER 19, 1957 -- REHEARING DENIED OCTOBER 4, 1957.
Saturday May 23 01:42 EDT


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