Chavers v. Kent Diversified Products, Inc.
Chavers v. Kent Diversified Products, Inc.
Opinion of the Court
Appellant-plaintiffs entered into an agreement whereby they “granted, bargained, sold and conveyed . . . unto [appellee-defendant] . . . [a]ll timber standing, lying, growing and being on [certain] described property. ...” Under the terms of the agreement, appellee was given 24 months within which “to cut and remove the above-described timber and trees from said tract of land, and all of the said timber and trees that are not cut and removed by said expiration date shall revert to [appellants].” The agreement did not provide for the payment of a specified gross amount to appellants. Instead, it provided for appellee’s payment of a specified varying dollar amount per cord of pine pulpwood, pine sawtimber, and certain types of hardwood.
Over the 24-month period specified in the agreement, appellee cut some, but not all, of the timber. After the uncut timber had reverted to appellants, they filed this action against appellee. Appellants’ complaint, as amended, alleged that $128,455 was the full purchase price of the timber that had been conveyed to appellee, but that they had been paid only $88,016 for the timber that appellee had
After discovery, appellants filed a motion for summary judgment as to both their main action and appellee’s counterclaims. Appellee filed a cross-motion for summary judgment on appellants’ main action. Pursuant to OCGA § 9-11-56 (h) and Southeast Ceramics v. Klem, 246 Ga. 294 (271 SE2d 199) (1980), appellants appeal directly from the grant of summary judgment in favor of appellee and from the denial of their motion for summary judgment.
1. Appellants urge that no genuine issue of material fact remains as to appellee’s contractual obligation to pay for all timber located on the tract regardless of whether that timber was cut into cords and removed during the 24-month period. Appellee urges that no genuine issue of material fact remains as to its contractual obligation to pay for only such timber located on the tract as it actually cut into cords and removed during that period.
“The relation between the parties to a conveyance whereby one sells to the other the timber on land is that of vendor and vendee, and not that of landlord and tenant; and the conveyance is a deed, not a lease, although the time within which the timber is to be cut and removed is limited to less than five years. [Cits.] .... The conveyance of timber . . . authorizes the grantee, not merely to use it and return it, but to take it away, sell it, and otherwise possess it.” McLendon Bros. v. Finch, 2 Ga. App. 421, 423-424 (58 SE 690) (1907). “A conveyance of timber which includes a limitation of time for the cutting and removal thereof conveys a title in the timber defeasible as to timber not removed within the stated period. After the time provided has elapsed, title to the remaining timber revests in the grantor. [Cit.]” Newport Timber Corp. v. Floyd, 247 Ga. 535, 540 (3) (277 SE2d 646) (1981). These principles are controlling and applicable in the instant case, notwithstanding any dicta contained in Johnson v. Truitt, 122 Ga. 327 (50 SE 135) (1905). See Camp v. Horton, 131 Ga. 793, 797-798 (63 SE 351) (1909).
Accordingly, for a 24-month period, appellee was vested with title to “all timber” on the tract and, during that period, it was authorized to cut and remove “all timber” located thereon. The conveyance to appellee of “all timber” for the 24-month period was all-inclusive and the broad scope of that conveyance could not otherwise be decreased
In support of their motion for summary judgment, appellants produced evidence in the form of a “timber cruise” which showed the estimated number of total cords of timber located on the tract at the time of the conveyance of “all timber” to appellee. This “timber cruise” was probative evidence of the number of cords of timber that were located on the tract at that time. See generally Warwick Long Leaf Co. v. Zorn, 95 Ga. App. 344, 345 (3) (98 SE2d 62) (1957). See also Pippin v. Burnum, 172 Ga. App. 553, 554 (1, 2) (323 SE2d 857) (1984). When the number of cords contained in appellants’ “timber cruise” is multiplied by the applicable varying dollar amounts per cord specified in the agreement as the agreed-upon consideration for the conveyance of “all timber” on the tract, the resulting figure is $128,455. When the $88,016 that was previously paid to appellants by appellee is subtracted from the agreed-upon consideration of $128,455, the unpaid balance of the purchase price for the conveyance
2. Our holding in Division 1 of this opinion also mandates the reversal of the trial court’s denial of appellants’ motion for summary judgment on appellee’s counterclaims. Insofar as appellee owes $40,439 to appellants, it clearly has no viable claim against them for an alleged overpayment or for abusive litigation.
3. The grant of summary judgment in favor of appellee and the denial of summary judgment in favor of appellants must be reversed.
Judgments reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.