ON MOTION FOR REHEARING.
Jenkins, P. J.The decision of the Supreme Court in Sirmans v. Milltown Lumber Co., 130 Ga. 82 (60 S. E. 267), and the decision of this court in the case of Sutton v. Gray Lumber Co., 3 Ga. App. 377 (60 S. E. 2), were not overlooked when this case was originally considered. The question involved in each of those cases was, to whom did the uncut timber belong after the expiration of the timber lease referred to by the land deed? In *688both of the cases mentioned it was in substance held, that if under the terms of such a timber lease the rights of the lessee became terminated before he had actually cut the timber covered by his lease, the uncut timber did not revert to the original grantor, but passed to his grantee under the land deed. These decisions are based upon the theory that the only reservation made by the subsequent land deed was such as was actually specified, and that upon the expiration of the stipulated lease, the grantee under the land deed took all rights to the uncut timber which his grantor may have had. No such question enters into the instant case. Here the owner of the land, after orally agreeing to a lease for five years of the timber rights for the sum of $10,000, but before the timber lease was reduced to writing and signed, conveyed the land itself, in consideration of $2,500, to another person, but stipulated in the land deed that it was made subject to a timber lease of even date. Thus, the stipulation in the deed, while not excepting any greater rights, than those covered by the terms of the lease referred to, clearly indicated to the purchaser of the land that she was not entitled to the rights actually covered by the terms of the lease mentioned. After the expiration of such period covered by the lease, the reservation would no longer militate against the rights of the grantee in the land deed, but under the rule laid down in the Birma/ns.case, the timber then remaining uncut would belong to her, under the theory that the land conveyance carried all the interest of the grantor save such as he might have under the terms of the stipulated lease. In our opinion, the grantee under the land deed should not be allowed, by paying the value of the land, which represented only one fifth of the value of the land and timber, to acquire title to the cut timber in dispute, despite the specific stipulation in her deed putting her on distinct notice that the timber rights for and during the period of five years were not conveyed, but belonged to another person. Especially would this be true where it appears from the statement of facts appended to the original opinion that such purchaser of the land thereafter permitted the purchaser of the timber to enter upon the premises, and at his own expense to cut timber under his lease, and sell the same for a consideration to the defendant in error in this case. While it is true that standing timber is regarded as a part of the realty, even if the stipulation in the land *689deed under which plaintiff in error holds could not of itself be taken to estop it from denying the validity of the previous oral sale of the timber, it would seem that there was such part performance of the previous oral contract of sale, permitted by the grantee under the land deed, as would estop her from denying its validity, and would render unnecessary the reduction to writing of the timber lease recited by the terms of the written land deed.
Rehearing denied.