Darby v. Mutual Benefit Life Insurance

Hines, J. The vendee in a security deed can by injunction prevent one claiming under the vendor therein, by right or title acquired subsequently to the execution and record of such deed, from cutting for sawmill purposes timber growing upon the land conveyed by such instrument, when the cutting of the timber impairs the value of the vendee’s security. Small v. Slocumb, 112 Ga. 279 (37 S. E. 481, 53 L. R. A. 130, 81 Am. St. R. 50); Bitting v. Chattooga County Bank, 159 Ga. 78 (124 S. E. 899); Ponder v. Mutual Benefit Life Insurance Co., ante, 366. It is unnecessary in this case to decide whether the vendor in a security [517] deed, while in possession of land and before default in payment of the secured debt or interest thereon, can, as against the grantee in the deed, sell growing timber on the land embraced in the deed to be cut and removed therefrom for sawmill purposes, where the sale of the growing timber would not impair the value of the security. Under conflicting evidence upon the question whether the cutting of the timber lessened the vendee’s security, the court below did not err in granting an injunction restraining the defendant from cutting and removing the timber upon the land embraced in the security deed. Judgment affirmed. All the Justices concur, except