Ferguson v. Hardy

• Decision Date: 31 August 1877
• Citation: 59 Ga. 758
• Parties: John H. Ferguson, plaintiff in error. v. A. J. Hardy et al., administrators, defendants in error.
• Court: Georgia Supreme Court

59 Ga. 758

John H. Ferguson, plaintiff in error. v. A. J. Hardy et al., administrators, defendants in error.

Supreme Court of the State of Georgia

(August Term, 1877.)

Landlord and tenant. Levy and sale. Before Judge Hall. Upson Superior Court. May Term, 1877.

Reported in the decision.

J. A Gotten, for plaintiff in error.

J. Y. Allen, for defendants.

*WARNER, Chief Justice.

The plaintiffs, as the administrators of Charles V. Collier, sued out a distress warrant against Ferguson for rent before the note given therefor was due, on the ground alleged therein, that the tenant was seeking to remove his goods from the premises, as provided by the 2285th section of the Code. The defendant filed his counter affidavit, in which he alleged that the land for which the plaintiffs claim their rent in their distress warrant, was levied on and sold by the sheriff of Upson county, on the first Tuesday in July, 1875, by virtue of a fi. fa. against plaintiffs' intestate, which issued on a judgment dated 3d of November, 1862, before the crop thereon was matured, and that he had been dispossessed and evicted from the land by due process of law, and that no part of the rent due therefor was due by the defendant to the plaintiffs. On the trial of the issue thus formed, the jury, under the charge of the court, found a verdict in favor of the plaintiffs, for the amount of the rent note. The defendant made a motion for a new trial on the several grounds therein stated, which was overruled, and the defendant excepted.

It appears from the evidence in the record, that the land was sold by the sheriff as alleged by the defendant in his counter-affidavit, and was purchased by Allen. The sheriff dispossessed the defendant as the tenant of the plaintiffs in the distress warrant, and put Allen, the purchaser at the sheriff's sale, in possession of the land, and then the defendant attorned to him as his landlord and paid the rent for that year to him, by delivering to him cotton for that purpose, which was the removal of goods from the premises complained of by the plaintiffs in their distress warrant.

The court charged the jury, amongst other things, "that Allen, the purchaser at the sheriff's sale, purchased the interest only of the estate of Collier. If defendant rented the land for standing rent, a fixed sum of money, for which he gave hisnote, then the administrators of Collier had no interest *in the crop, but the crop belonged to defendant, the tenant of the administrators, and...