Coody brought his action against The Gress Lumber Company for trespass, in entering upon lot of laud number 128, in the 20th district of Dodge county, aud cutting and carrying away therefrom yellow pine timber growing thereon. The defendant pleaded the general issue. On the trial, the plaintiff introduced a deed *796conveying the lot mentioned, made by Thomas Dunn to him September 27th, 1883, which was recorded in October, 1883. He also introduced a deed by Luke Sapp to Dunn, dated February, 1868, conveying the same land. The plaintiff' proved the value of the timber taken from the land, and that Dunn, from whom he purchased, was in possession when he (the plaintiff) bought from him, and that he (plaintiff) had been in possession ever since. ■ The plaintiff’ also testified that he had no notice that Dunn had sold the timber to Griffin, until after he had purchased the land from him, and, we infer from his testimony, after he had paid for the land. The defendant introduced in evidence what is styled in the record a “lease” from Thomas Dunn to W. Griffin, dated September 29th, 1881, by which Dunn leased to Griffin all the saw-mill timber upon lot 128, giving Griffin the right of access, etc. to the lot “as long as it may be used, beginning, at the present and ending when it ceases to be used.” It was stipulated in this “lease” that the land and timber should revert to Dunn as soon as the parties holding under the lease should have taken off all the 'timber they might be entitled to under it. The defendant also introduced a contract dated September 20th, 1881, between McArthur & Griffin and A. B. Steele & Co., by which McArthur & Griffin sold to Steele & Co. timber suitable for the manufacture of lumber, shingles, etc. from as many as fifty lots of land embraced in the 20th district of Dodge county, within certain described boundaries, the number of only a few lots being mentioned, and number 128 not being mentioned among these. Steele & Co. were given twenty years to finish getting the timber from said lots, provided it took that much time. ' The defendant also introduced a transfer from G. Y. Gress, of all his interest under the last mentioned *797contract, to The Gress Lumber Company; also a bond for titles executed January 28th, 1885, by A. 33. Steele to G. V. Gress, reciting that Steele had on that day agreed to sell to Gress all his right, title, etc. in and to the property in the county of Dodge owned by said Steele and Gress under the firm name of A. B. Steele & Co., consisting of leases, uncut timber, etc. This last paper was signed by Steele and attested by two witnesses. The defendant further introduced testimony tending to show that the plaintiff knew that Dunn had sold the timber to Griffin before he bought from Dunn. The jury found for the defendant. The plaintiff moved for a new trial, upon the several grounds set out in the motion. The motion was overruled and he excepted.
1. The court charged, in substance (see 9th and 10th grounds), that if Dunn had leased the timber to Griffin prior to the sale of the land to Coody, the plaintiff, Coody took the land subject to the incumbrance of the leasehold interest, and that it was immaterial whether Coody bought without notice of the lease, — that the question of notice had nothing to do with the case. These grounds were the main ones relied on by counsel for the plaintiff in error for a reversal of the judgment of the court below. Under the facts of this case as disclosed by the record, we think the charge was erroneous. The meaning of the charge is, that when a person purchases growing trees standing upon the land, the contract is one relating to personalty and not to realty. ¥e cannot agree with the able judge who tried the case in this view of the law. In our judgment, a sale of growing trees is a sale of an interest in land. Our code, §2218, declares that “ Eealty, or real estate, includes all lands and the buildings thereon, and all things permanently attached to either, or any interest therein or issuing out' of or dependent thereon. The *798right of the owner of laud, extends downward and upwards indefinitely.” Trees are “permanently aattched” to the land. Under this section, therefore, they are a part of the land. We are aware of the fact that courts and text writers, both in this country and England, have differed upon this question, but the later and bettor doctrine by a majority of courts and text writers of this country, seems to be that standing trees constitute a part of the realty, and that a sale of such, under the statute of frauds, must be in writing, because it is a contract concerning land. See 1 Washb. Real Prop., 4 ed. page 18; 2 Reed on Stat. Frauds, §§707 et seq., and notes ; 1 Tiedman Real Prop. §§2, 9, 799; Green vs. Armstrong, 1 Denio, 554. See also Owens vs. Lewis, 46 Ind. 488, (15 Am. Rep. 295,) where, in an able and exhaustive opinion, the decisions of different courts are reviewed.
2. The contracts, however, which were relied on by the defendant were in writing, and would be binding on Dunn, the common grantor, and on Coody, who claims under him, if Coody had notice of the sale of the timber prior to his purchase from Dunn. Treating the written paper executed by Dunn to Griffin as a conveyance of an interest in this lot of land, in order to protect Griffin and those claiming under him from a subsequent sale made by Dunn to Coody, the conveyance, under our laws, should have been recorded within one year after it was made. Our law is, that if an owner of land sells it to one person and makes him a deed, and subsequently sells it to another person without notice of the first deed, and makes the latter a deed also, and the first purchaser fails to record his deed within one year, and the second purchaser records his in time, the title of the second purchaser will prevail over that of the first. If the paper made by Dunn to Griffin was a *799conveyance of an interest in land, it was not recorded within one year, as prescribed by the statute; indeed, it was never recorded. Goody’s deed, however, according to the record, was recorded within the time prescribed by the statute. If, therefore, Coody purchased without notice that the timber had been sold to Griffin, his title will prevail over Griffin’s. So it appears that the trial judge was wrong when he charged the jury that notice had nothing to do with the case.
Treating the paper executed by Dunn to Griffin, not as a conveyance of an interest in land, but simply as a contract for the sale of the trees, it would stand on no. higher footing than a bond for titles given by a vendor to a vendee, with the purchase money paid. In that case the same rule would apply as to notice and bona fide purchasers. In the case of Allen vs. Holding, 29 Ga. 485, this court held that a bond for titles with the purchase money paid, is not good against a subsequent conveyance to the purchaser for value who purchases without notice of the bond, and records his conveyance in due time. See also Fahn vs. Bleckley, 55 Ga. 81, where this principle was recognized and the above case cited. "We therefore hold that whether the paper from Dunn to Griffin was a conveyance, or whether it was simply a contract for the sale of trees, it was a contract for the sale of an interest in land, and if Coody subsequently purchased and paid for the land without notice of this sale of the trees to Griffin, he would be entitled to recover the value of the trees. If he had notice, prior to this purchase from Dunn, that Dunn had sold the trees to Griffin, then he would not be entitled to recover.
3. It is doubtful from this record whether the defendant objected to the introduction in evidence of the written contract between McArthur & Griffin and Steele & Go., and that between Dunn and Griffin. If the ob*800jection was made at the trial and overruled, there was no error in admitting them in evidence -as complained of in the fourth and fifth grounds of the motion. While no witness attested these papers, the 'execution, was properly proved by other evidence. The fact that they were not attested did not render them invalid, as claimed by counsel for the plaintiff' in error. It is also doubtful whether objection was made at the trial to the introduction ■ in evidence of the bond for titles from Steele to Gress. If the objection was made and overruled, we think the court erred in admitting it without proof of its execution by the subscribing witnesses, as complained of in the sixth ground. We do not agree with counsel for the defendant in error that the paper was only collaterally.or incidentally material to the case, and that it was therefore unnecessary to produce the subscribing witness to prove its execution. It seems to us that the defendant’s whole case rested upon this paper and the others connected with it, and it was necessary for him to prove its execution by the subscribing witnesses or account for their absence. Code, §3837.
4. There was no error in refusing to allow the plaintiff, when on the stand as a witness, to answer the following question: {i IIow much was the lot of land damaged hy cutting off' the timber?” (seventh ground of the motion.) The action, according to the declaration, was solely for the value of the timber, and not for damages to the land, and the court properly refused to allow evidence to go to the jury as to how much the land had been damaged.
Judgment reversed.