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v. Kent Diversified Prods., Inc., 389 S.E.2d 261, 262-263 (Ga.
Ct. App. 1989).8
8 Some Georgia case law arguably supports respondent’s
contention that the property petitioner relinquished constituted
personalty. In Johnson v. Truitt, 50 S.E. 135, 136 (Ga. 1905),
the contractual right of a purchaser to cut standing timber
within 12 months was referred to as “merely a license to cut and
remove the timber for the purposes stated, during the time fixed
in the contract.” See also Graham v. West, 55 S.E. 931 (Ga.
1906) (sale of standing timber where the growing trees are to
remain in the soil for a fixed time or indefinitely concerns an
interest in the land, but if the trees are to be immediately
severed and carried away, the sale is of personal property). In
North Ga. Co. v. Bebee, 57 S.E. 873, 874 (Ga. 1907), the Georgia
Supreme Court cited Johnson v. Truitt, supra, with approval for
the proposition that “the owner of the land may convey a right to
cut and remove timber within a specified time, in which case the
absolute title to the timber described does not pass to the
purchaser, but only a license to use it for the purpose stated,
during the period specified in the contract.” To the same
effect, see also Seabolt v. Christian, 60 S.E.2d 540, 543 (Ga.
Ct. App. 1950); Pope v. Barnett, 163 S.E. 517, 518 (Ga. Ct. App.
1932).
In Camp v. Horton, 63 S.E. 351, 353 (Ga. 1909), the Georgia
Supreme Court reviewed other Georgia precedents to contrary
effect and concluded that the above-quoted language from Johnson
v. Truitt, supra, was “not essential to the decision of the case
or the correctness of the judgment”. See also Chavers v. Kent
Diversified Prods., Inc., 389 S.E.2d 261, 263 (Ga. Ct. App. 1989)
(dicta in Johnson v. Truitt, supra, is not controlling).
In short, on the issue of whether an agreement for the sale
of growing trees is a contract for the sale of an interest in
land, Georgia State law is less than a seamless web of
jurisprudence. In this regard, Georgia State law is not unique.
With regard to this legal issue, among the various States “There
is considerable difference of opinion, often in the same
jurisdiction, * * * undoubtedly due to diverse theories of the
courts with respect to the exact nature of standing trees.”
Davis, Annotation, Sale or Contract for Sale of Standing Timber
as Within Provisions of Statute of Frauds Respecting Sale or
Contract of Sale of Real Property, 7 A.L.R.2d 517, 518 (1949).
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