Gray v. Callahan

Decision Date12 July 1940
PartiesGRAY v. CALLAHAN et al.
CourtFlorida Supreme Court

Error to Circuit Court, Orange County; Frank A. Smith, Judge.

Proceeding for unlawful detainer by Mattie Muse Callahan, joined by her husband, J. B. Callahan, against G. R. Gray. To review an adverse judgment, the defendant brings error.

Judgment affirmed.


W. R. Smith and G. B. Fishback, both of Orlando, for plaintiff in error.

Radebaugh & Radebaugh and Dickinson & Dickinson, all of Orlando, for defendants in error.


BROWN Justice.

This is a statutory proceeding for unlawful detainer (see sections 5310-5314, C.G.L. of 1927), instituted April 10, 1939.

Gray defendant below, was in possession of a certain described lot of land in Orlando, Orange County, Florida, the ownership of which was claimed by Mattie Muse Callahan, plaintiff below. Gray admitted possession of the land and further testified that he had formerly paid rent to Collins under a lease made in 1937, which he claimed to have received in writing from Collins, whom he considered to be the owner. That after he had been informed that Acor, Inc., and then Callahan, had acquired the property, he had paid the rent to their respective agents. He attempted to show, however, that he agreed to pay rent to Callahan or her agents only provided it was agreeable with Collins for him to do so. Gray testified that Collins would not agree to his paying rent to Callahan and that Collins did not consent to his paying rent to Callahan at any time. This testimony was struck as being immaterial, and that there was no showing, other than Gray's testimony, that Collins had, or had asserted, any rights whatsoever in regard to the rents. The lease referred to by Gray was never offered in evidence.

Plaintiff introduced in evidence a deed dated October 15, 1937, from A C. Collins to Acor, Incorporated, and also a deed dated October 18, 1937, from Acor, Inc., to plaintiff Callahan. These deeds were proffered by plaintiff not to show title, but merely the right to possession. Defendant objected to their introduction for any purpose other than to show the boundaries of the land, and the court admitted them for such latter purpose.

Plaintiff also introduced testimony to the effect that Gray had agreed to remain on as a tenant of Callahan after she had obtained a deed to the property and had paid rent to Callahan's agents monthly from early in 1938 up to and through February, 1939. One of Callahan's agents admitted that Gray had told him he had a written lease from Collins, and it also appeared that Acor, Inc., had agreed that Gray could continue in possession under his former lease which he claimed to have from Collins, and pay the same amount of rent to Acor, Inc., to which Gray assented. That thereafter he paid the rent to plaintiff as above stated. On April 4, 1939, formal notice was served on Gray to pay the two months delinquent rent in three days, or vacate the premises. Gray admitted that he had paid rent to Acor, Inc., but did so on its agent's representation that Collins had authorized Acor, Inc., to collect it, and that he later had agreed to pay the rent to Callahan provided it was all right with Collins, who had leased the property to him.

He then testified that some months later he had seen Collins in February, 1939, and that Collins would not agree to his paying rent to Callahan at any time, but this testimony was stricken by the court on plaintiff's objection that it was immaterial and that there was no showing the Collins had any rights in the matter whatever.

Gray in his testimony made certain admissions, one of which was that when Dr. Callahan, the husband of Mattie Muse Callahan, first came to see him about the rent, he did not think anything was said about Collins, whereupon his counsel asked him, 'You mean you agreed to pay him rent even if Collins didn't agree for you to pay him rent?' To which Gray answered: 'Well, I did at that time. I didn't want to get into the courts. I didn't know whether it belonged to him or Collins.' Gray also testified that the payments he made were made as payments of rent for the premises. That he paid Mr. Giles, representing Acor, Inc., $15 as the first months rent, which was increased to $22, $7 being for rent of another and additional part of the lot, which additional portion he rented from Giles, who was acting for Acor, Inc., and Gray used it for a wood yard; that he paid this $22 for two months, which was then increased to $25 and later to $30 per month. The evidence shows that Gray paid $30 per month to Callahan, as rent for the entire lot from about the middle of 1938 up to through February, 1939, when he cased paying. Other evidence in the case indicates that the rent was so increased by agreement between the parties and that the tenancy was extended by agreement from a fifty-foot portion of the lot so as to embrace the entire lot.

Gray moved for an instructed verdict on the grounds, (1) that it did not appear that plaintiff had ever been in possession of the land; (2) that it did not appear that defendant's tenancy had ended. This motion was denied, and on plaintiff's motion, the court instructed the jury to render a verdict awarding the plaintiff possession of the premises and $60 for the delinquent rent.

Plaintiff in error contends that the mere fact that one pays rent to another is not conclusive evidence of the existence of the relationship of landlord and tenant; citing Taylor's Landlord & Tenant, 8th Ed., par. 14, wherein it is said:

'The relation of landlord and tenant subsists by virtue of a contract, express or implied, between two or more persons for possession of land or tenements in consideration for certain rent to be paid therefor.' Taylor's Landlord and Tenant, Volume 1, 8th Ed., paragraph 14.

And the same author, Paragraph 23, states:

'But the receipt of rent is only a prima facie acknowledgment of the existence of a tenancy, and is always subject to explanation; for where the amount received does not appear to have been paid as rent or bears but a small proportion to the annual value of the premises, the rule does not apply.'

But in this case, the defendant Gray admitted that he had leased a large part of the lot from Collins, who conveyed the lot to plaintiff's grantor, Acor, Inc., and later that he, the defendant, had rented the remainder of the lot from plaintiff, or her immediate grantor, and had paid the agreed rent for a number of months before this suit was brought.

We have held that during the life of a lease the lessee holds an outstanding leasehold estate in the premises, which for all practical purposes is equivalent to absolute ownership. Baker v. Clifford-Mathew Inv. Co., 99 Fla. 1229, 128 So. 827. The estate of the lessor during such time is limited to his reversionary interest which ripens into perfect title at the expiration of the lease. Rogers v. Martin, 87 Fla. 204, 99 So. 551.

But defendant Gray never introduced in evidence his alleged written lease from Collins, and hence no showing was made to the trial court as to when that lease began or when it expired, nor what its provisions were. The substance of what was shown by defendant was merely that he was renting that part of the lot on which he had a filling station from Collins, and was in possession under a lease from him, when Collins conveyed the lot to plaintiff's grantor, Acor, Inc.

The effect in general of a conveyance of the reversion is well expressed in 16 R.C.L. 641, as follows:

'After a landlord has transferred his reversion, all privity of estate between himself and his lessee is terminated, and his right to enforce covenents and agreements on the part of the lessee, not broken at the time of the transfer and which run with the reversion cases; the right to enforce such agreements is then vested in the transferee of the reversion. Thus the right to rent accruing after the transfer of the reversion passes to the transferee, and the original lessor has no right to maintain an action against the lessee to recover the same, though he has expressly covenanted or agreed to pay rent to the lessor. The transferor of the reversion may, however, after the transfer, maintain an action upon the lessee's contract to pay rent, if the same had fully accrued prior to the transfer, and he may in the transfer expressly reserve the rent for part of all of the term granted by the lease, in which case he may sue the lessee upon the contract the same as if there had been no transfer.'

Formal attornment of the tenant to the grantee of the reversion, which was required by the old common law, was made unnecessary by statute of 4 & 5 Anne, c. 16, sections 9 and 10. See 16 R.C.L. 636.

As the deed from Collins, Gray's former landlord, to Acor, Inc., contained no reservation of rents accruing thereafter, it amounted to a relinquishment by Collins of his rights to subsequently accruing rentals to his grantee, and the conveyance of the reversion by Acor, Inc., to Mrs. Callahan had the same effect.

Appellees contend that appellant's defense in the court below was an indirect effort to dispute his landlord's title, and this he could not do. The general rule of course is that a tenant is estopped from disputing his landlord's title, but there are several exceptions to and qualifications of this rule. Thus, in Blankenship v. Blackwell, 124 Ala. 355, 27 So. 551, 553, 82 Am.St.Rep. 175, we find in the opinion by Mr. Justice Dowdell, the following pertinent comments:

'In considering this question, it is well to notice, first, that 'a distinction is made between cases where the party has received possession from the lessor, and where he has merely admitted his title by paying rent, attorning, or even by...

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