
    Giles v. Gano.
   Lumpkin, P. J.

Under the decision of this court in Balkcom v. Empire Lumber Company, 91 Ga. 651, which upon a review thereof is affirmed, the making and carrying into effect of a contract whereby the owner of land upon which was standing timber sold to the proprietor of a sawmill “seventy-four acres of timber” at the price of “three dollars per acre,” the same to be cut and hauled by the purchaser, did not, under section 2809 of the Civil Code (Code 1882, §1985), entitle the seller to a lien upon the sawmill and its products.

Judgment affirmed.

All the Justices concurring.

Pish and Cobb, JJ.,

concurring. Being bound by the decision cited supra, we concur in the judgment, but as an open question we would hold that the term “timber,” as used in section 2809 of the Civil Code, embraces “standing timber,” notwithstanding the same is realty; and accordingly, we are of the opinion that under the facts of this case the plaintiff in error was entitled to the lien claimed by him.

Argued June 16,

Decided August 7, 1897.

Levy and claim. Before Judge Felton. Crawford superior court. October term, 1896.

H A. Mathews, for plaintiff. Hardeman & Moore, contra.  