Allen v. Allen

• Decision Date: 17 November 1922
• Docket Number: (No. 3099.)
• Citation: 154 Ga. 581,115 S.E. 17
• Parties: ALLEN. v. ALLEN.
• Court: Georgia Supreme Court

154 Ga. 581

115 S.E. 17

ALLEN.

v.ALLEN.

(No. 3099.)

Supreme Court of Georgia.

Nov. 17, 1922.

Rehearing Denied Dec. 15, 1922.

(Syllabus by the Court.)

Error from Superior Court, Madison County; W. L. Hodges, Judge.

Proceeding by George H. Allen against George T. Allen. Judgment for plaintiff, and defendant brings error. Affirmed.

George H. Allen on January 1, 1919, sued out a dispossessory warrant against George T. Allen on the ground that the latter was holding the premises involved over and beyond the term for which the same were rented to him. George T. Allen filed his counter affidavit denying that he was holding possession over and beyond his term, and alleging that he did not hold possession from George H. Allen as tenant, and "that he owns said land and annually pays to the said George H. Allen" a certain amount which he had paid for the year 1918. On the same day George T. Allen filed his equitable petition against George H. Allen, in which he sought to have the latter specifically perform a certain contract under which he claims to have gone into possession of the premises in dispute. This petition was tried, and the trial resulted in a verdict and decree in favor of the defendant. The case was taken to this court, and the judgment of the lower court was affirmed. A full history of this equitable action is disclosed in Allen v. Allen, 151 Ga. 278, 106 S. E. 81. After that decision the defendant in the dispossessory warrant on September 5, 1921. amended his counter affidavit by alleging that he went into possession of the land involved, not as tenant, but under a contract by the terms of which the plaintiff gave the land to him, and he was to pay the plaintiff 2, 040 pounds of lint cotton annually as long as the plaintiff lived or demanded the same; that, based on said contract, he went into possession of the premises, and made valuable, permanent improvements thereon, which are set out in this amendment; that he had paid said annuity as it fell due: that under these facts the relation of landlord and tenant did not exist, and that the plaintiff could not, in good conscience and under the law, remove him from said premises. He prayed for verdict and decree that plaintiff cannot remove him from possession of said property, and that he have such other relief as he is entitled to under the facts. The contract here set up was the same as that which the defendant sought to have specifically performed in his equitable action above referred to.

On the trial of the dispossessory warrant case the plaintiff introduced the entire record, including the petition, answer, brief of the evidence, verdict, decree, and the affirmance of the latter by this court. Counsel for the defendant moved to rule out this record: (1) Because the issue in that case was not involved in this case; (2) becausethe issue in this case had never been passed upon; (3) because there was no plea of res judicata. The court overruled this motion. The court refused to permit the defendant to introduce any evidence to establish the contract alleged in his amendment to his counter affidavit, on the ground that he was concluded, by the decree in his action for specific performance, from again setting up this contract as a defense to the dispossessory warrant proceeding. The defendant excepted pendente lite to these rulings, and assigned error thereon in this court.

The plaintiff introduced evidence tending to establish the allegations of his affidavit on which the dispossessory warrant was based. For the defendant it was shown that he went into possession of the premises in dispute about two weeks before Christmas in 1915. He paid to the plaintiff the stipulated rent for 1919 on October 10th of that year, which the plaintiff accepted as rent and for which he gave his receipt, stating that it was for rent for that year. The defendant likewise paid the stipulated rent for 1920. Plaintiff admitted getting these rents, but stated that at the time of receiving them he told the defendant that the matter was in court where it would have to be decided.

The jury found for the plaintiff the premises, but no additional rent. The defendant made a motion for new trial on the general grounds, and by amendment added 12 grounds. Grounds 4, 5, and 6 of this amendment complain of the rejection by the court of evidence offered by the defendant to establish the contract set up in the amendment to his counter affidavit Ground 7 complains of the refusal of the court to rule out the record in the former suit of George T. Allen against George H. Allen, for specific performance. Ground 8 complains of the refusal of the court to allow the defendant to prove by various witnesses that George H. Allen had stated to them that he had given to the defendant the land in dispute. Ground 9 alleged that the court erred in refusing to admit in evidence a deed from George H. Allen to George T. Allen, dated January 24, 1916, conveying the land involved in this suit; plaintiff objecting to its introduction on the ground that the issue had already been decided in the former suit between these parties for specific performance. In ground 10 the defendant insists that the court erred in refusing to permit him to introduce in evidence a deed from George H. Allen to W. T. Allen, dated January 24, 1916, conveying 85 acres of land, and a deed of the same date from the same grantor to Hessie Allen Rowe, conveying 85 acres of land; the plaintiff objecting to the introduction of these deeds on the ground that they were irrelevant and immaterial. In ground 11 it is alleged that the court erred in excluding deeds made by George H. Allen to his other children, which deeds defendant insisted illustrated a scheme of said George H. Allen in making deeds to his children, including the defendant; the plaintiff objecting to those deeds on the ground that they were irrelevant and immaterial.

In ground 12 it is alleged that the court erred in charging the jury as follows:

"The court has ruled out all testimony of the defendant. George T. Allen, relating to the sale of the land in question by his father to him, and also about any and all improvement, and about insurance, and lightning rods, and everything like that, as being irrelevant in this case, as will be explained to you in a charge on the issue in regard to the rents, whether or not George T. is due the old gentleman any rent or not."

The error alleged is that the effect of this ruling was to exclude from the consideration of the jury entirely the question of whether or not George T. Allen went into possession under a gift or a contract by which he was ultimately to have the title, or as a tenant subject to be ejected as a tenant holding over. In this ground was set out all of the evidence ruled out which tended to sustain the allegations of the defendant's amendment to his counter affidavit

In ground 13 it is complained that the court erred in charging the jury as follows:

"The defendant comes into court and files his counter affidavit, which he has a right to do, and alleges the following: 'Personally comes George T. Allen, who upon oath declares, in reference to the affidavit of George H. Allen this day exhibited to him, that his term of rent has not expired as alleged, and that he is not holding possession over and beyond his term, and that he does not hold the premises from said George H. Allen, nor from any one under whom said George H. Allen claims as tenant, either as alleged in said affidavit or otherwise; that he owns said land and annually pays to the said George H. Allen a certain amount which has been paid for the year 1918.' Under the rulings of the court the latter part of the defendant's answer is not germane to the issue that you are to try; that is to say, the allegation that the defendant owns said land, and annually pays to the said George H. Allen a certain amount which has been paid for the year 1918. That, I say, is not germane now to the issues in the case, owing to the rulings of the court, for which the court is responsible; and under these rulings, as heretofore stated, the relationship of landlord and tenant exists between George H. Allen, as landlord, and George T. Allen, as tenant, and the only question and the main question for you to decide in this case is whether or not George T. Allen is holding over and beyond the rental contract of 1918, and, if so, how much rent he is due on account of holding over."

The error assigned is that by this charge the defendant did not receive the benefit of the issue made by him that he held theproperty in question under a contract of gift under which he was to pay a certain amount of cotton each year, and, having paid the amount, he was not subject to be removed as tenant

In ground 14 it is alleged that the court erred in charging the jury as follows:

"I charge you further, as law applicable to the case, if you believe from the evidence that the defendant, George T. Allen, tendered to the plaintiff 2, 040 pounds of lint cotton in settlement for the rent for the year 1919 he, George T. Allen, was due the said George H., and that George T. Alien tendered 2, 040 pounds of lint cotton as rent cotton for the year 1920, and George H. Allen accepted said amounts for the years 1919 and 1920, then and in that event the plaintiff, George H. Allen, would not be entitled to recover in this case any amount, and you should find for the defendant. On the other hand. I charge you that, if the defendant, George T. Allen, paid to the plaintiff 2, 060 pounds as rent for the year 1919 and 2, 040 pounds for 1920, and plaintiff accepted said cotton, not in full settlement of his claim for rent, but accepted the same with notice from the said George H. to the said George T. that he would credit the same on any amount that he might recover as rent in this proceeding which was then pending, then I charge you the acceptance of such rental for the year 1919 and 1920 would not be in full liquidation or settlement...