Dillard v. Cusseta Naval Stores Co.

Lumpkin, J. (After stating the foregoing facts.) The plaintiffs alleged, that one Kissick was in possession of a tract of land under an agreement of purchase; that, with the consent of the owner of the fee, Kissick sold and leased to a named firm the growing trees for turpentine purposes, and also sold all the trees suitable “for saw and wood purposes;” that the plaintiffs were “the owners” of the rights included in the written contract, as the transferees and assignees thereof, through successive transfers and assignments in writing of said lease contract, “the transfer and assignment of such rights, privileges, and claims being made and executed to your petitioners on the seventh day of February, 1913.” A demurrer was filed, one ground of which raised the point that it was not alleged who made the successive transfers and assignments ; and another that the assignments or transfers were not sufficiently set forth or described. We can perceive no good reason why the plaintiffs should be allowed, to allege that they are the owners of timber, turpentine rights, and easements under successive assignments and transfers of a written contract known as a timber and turpentine lease, and refuse to give the defendants any information as to who made the successive assignments and transfers mentioned. A conveyance of growing trees is a conveyance of an interest in the realty; and a mere transfer of the instrument by which the conveyance is made does not, without more, suffice to transfer such interest in the realty. Tillman v. Bomar, 134 Ga. 660 (68 S. E. 504); Gaskins v. Green, 141 Ga. 552 (81 S. E. 882). If the transfer is not merely of the contract, but of the rights, privileges, or property described therein, this may suffice. If the pleadings contained sufficient' allegations as to the facts, it could be determined what was the effect of the transfers. But the allegations in this case were not sufficient to withstand a special demurrer. The plaintiffs showed that the rights sought to be protected were granted to others, but failed to connect themselves with such others by any proper allegations. The rules as to evidence which will serve to show a prima facie title to realty, and that an equitable title may be protected, do not [495] authorize insufficient allegations of fact. The fourth and fifth grounds of the demurrer should have been sustained. Judgment reversed. All the Justices concur.