Byrd v. Piha

• Decision Date: 16 December 1927
• Docket Number: 6136.
• Citation: 141 S.E. 48,165 Ga. 397
• Parties: BYRD et al. v. PIHA.
• Court: Georgia Supreme Court

141 S.E. 48

165 Ga. 397

BYRD et al. v. PIHA.

No. 6136.

Supreme Court of Georgia

December 16, 1927

Syllabus by the Court.

While under the Act of August 25, 1925, p. 97, the trial judge may hear and determine all demurrers in equity causes in which extraordinary relief is sought, at any interlocutory hearing before the appearance or first term, he is not obliged to do so, but may postpone the hearing of such demurrers until the hearing of the same may be reached in due order.

Contracts creating the relation of landlord and tenant for any time exceeding one year must be in writing; and, when executed by an agent, the authority of the agent to execute it must likewise be in writing.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Petition by Leo Piha against C. M. Byrd and another. Judgment for plaintiff, and defendants bring error. Reversed.

Randolph Parker & Fortson, of Atlanta, for plaintiffs in error.

Alston Alston, Foster & Moise, of Atlanta, for defendant in error.

HINES J.

Mrs. Byrd owned a business building. She authorized her husband, the authorization being oral and not in writing, to rent and lease her real estate. In pursuance of this oral authority, the husband, on October 12, 1925, leased to Piha this building for a period of five years from December 1, 1925, at a stated monthly rental, payable promptly on the 1st day of each month, in advance. This lease was signed by Piha as lessee, and by the husband in his own name as lessor. The lease contained a provision that, on failure of the lessee to pay the rent when due, the lessor had the right, at his option, to declare the lease void, cancel the same without any legal proceedings, re-enter and take possession of the premises. The lessee, not having paid his rent for the month of August, 1926, received on August 9, 1926, a letter from the husband, signed by the latter, his signature being followed by the word "agent," in which the husband as agent informed the lessee that the lease was canceled for failure to pay the August rent on the 1st day of the month when it was due, by the terms of the lease, and the lessee was told that from that time he would occupy the premises as a tenant at will, but that the rent would be the same until further notice. The rent for May, 1927, fell due on Sunday, and was paid on the next day. On May 4, 1927, the husband, as agent for his wife, notified the lessee that, as per the notice given on August 9, 1926, he was given 60 days in which to vacate the premises. Thereafter, on June 1, 1927, the lessee paid the rent for June, 1927. On June 1, 1927, the lessee filed his petition against the wife and husband, in which he sought to enjoin them from ousting him as a tenant at will, and to be relieved against the alleged forfeiture of his lease. The defendants demurred separately to the petition, upon various grounds.

The case came on for a hearing on the application of the lessee for an interlocutory injunction. Counsel for the defendants presented to the court their demurrers. The court announced that it would postpone argument upon the demurrers until it had heard all of the evidence. Evidence, including the lease, was then introduced by the lessee. The lease was not executed under seal. It was admitted that the husband was agent for his wife for the renting or leasing of her property and collecting the rents, such agency being created in parol, but that no authority in writing was ever given by the wife to the husband, of any kind and character, and that the wife had not ratified the execution of the lease in question. The court then announced that in its opinion the lease was valid, and granted an interlocutory injunction restraining the defendants from ousting the plaintiff from the premises as a tenant at will. Counsel for the defendants requested the court to require the plaintiff to give bond for double rent while the restraining order was in force. This the court refused to do, but in its order granting the temporary injunction required the monthly rentals to be paid on the 1st day of each month to one or the other of the defendants, and that the acceptance of such rents shall be without prejudice. The court declined to pass upon the demurrers of the defendants to the petition, but passed no order to this effect. To the judgment declining to pass upon the demurrers, and to the order granting the temporary injunction the defendants excepted upon the ground that they are contrary to law and to the evidence.

1. Under the Act of August 25, 1925, the trial court may hear, pass upon, and determine all demurrers in equity causes in which extraordinary relief is sought, at any interlocutory hearing before the appearance or first term. Acts 1925, p. 97. But this statute does not make it mandatory upon the trial courts to hear demurrers upon interlocutory hearings; and the judge may, in his discretion, postpone the hearing of such demurrers until the hearing of the same may be reached in due course. The trial judge did not err in declining to pass upon the demurrers at the interlocutory hearing, at which he granted the temporary restraining order involved in this case.

2. We pass over the questions whether the plaintiff had an ample and complete remedy at law by which he could prevent being ousted as a tenant at will, and whether he had forfeited his lease, and, after forfeiture had occurred, whether he makes such a case as would authorize a court of equity to relieve against the forfeiture; and we shall deal with what we deem the vital and controlling question in this case. That question is this: Can the owner of real estate authorize another, by parol and without any writing, to lease the same for a period longer than one year? "Contracts creating the relation of landlord and tenant for any time not exceeding one year may be by parol, and, if made for a greater time, shall have the effect of a tenancy at will." Civil Code 1910, § 3693. The above section excepts from its operation contracts made between landlords and tenants for leases of land for periods of a year or less. It necessarily follows that a contract for a lease of land for a period longer than one year must be in writing. In view of this fact, can the landlord orally authorize another as his agent to execute a lease for a period longer than one year? In other words, must the agency for that purpose be created by writing? The answer to this question depends upon the construction of section 3574 of the Civil...