Hodges v. Waters

• Court: Georgia Supreme Court
• Writing for the Court: COBB, P.J.
• Citation: Hodges v. Waters, 124 Ga. 229, 52 S.E. 161 (Ga. 1905)
• Decision Date: 13 November 1905
• Parties: HODGES v. WATERS.

52 S.E. 161

124 Ga. 229

HODGES v. WATERS.

Supreme Court of Georgia

November 13, 1905

Syllabus by the Court.

One who goes into possession of land as the tenant of another cannot set up title adverse to the landlord, from whom he thus obtained possession, until there has been a surrender of the premises by the tenant to the landlord. However, if a tenant thus in possession expressly agrees to pay rent to another for a given time, he will be bound by these terms, if founded upon a sufficient consideration; but, after the expiration of the time fixed in the express agreement, no promise to pay rent will be implied, and such person may deny liability for rent after that time, although he still remained in possession of the premises as the tenant of the person who placed him in possession.

Error from Superior Court, Bulloch County; B. T. Rawlings, Judge.

Action by R. B. Waters against C. W. Hodges. Judgment for defendant and plaintiff brings error. Reversed.

Where a tenant in possession expressly agrees to pay rent to another for a given time, he will be bound by the terms of such agreement, if founded on a sufficient consideration; but after the expiration of the time fixed in such agreement, no promise to pay rent will be implied, and such tenant may deny his liability to pay the rent to such third person, though he still remains in possession as the tenant of his original landlord.

R. B Waters sued out a distress warrant against C. W. Hodges claiming the sum of $100 as rent for the described premises. A counter affidavit was interposed; and the case, coming on for trial in the superior court on appeal, resulted in a verdict for the plaintiff for the amount claimed. The defendant made a motion for a new trial, which, in addition to the general grounds, assigned error on two special grounds: (1) That the court erred in charging the jury as follows: "If you find that C. W. Hodges ever at any time recognized or acknowledged R. B. Waters as his landlord, he cannot now attorn to any other person, if his possession was continuous from that time; that is to say, he cannot be heard to deny his obligation to pay rent to said R. B. Waters." (2) The second special ground assigned error upon the failure to charge the defendant's theory of the case, that he was the tenant of Mrs. Sarah Waters, and not the tenant of R. B. Waters, and also the failure to charge the provisions of section 3116 of the Civil Code of 1895, which declares: "When the title is shown in the plaintiff and occupation by the defendant, an obligation to pay rent is generally implied; but if the entry was not under the plaintiff, or if possession is adverse to him, no such implication arises." The motion for a new trial was overruled and the defendant excepted.

The evidence was in substance as follows: A warranty deed from Sarah Waters to the plaintiff, dated March 1, 1877, conveying the premises involved. A warranty deed between the same parties, conveying the same premises, dated February 4, 1896. The plaintiff testified that the defendant owed him the amount claimed in the distress warrant for rent of the place therein described for the year 1903; that he did not have a separate contract for that year, but the place was worth the amount it brought in the years 1896 and 1897; and that the land was worth $100 per year. Defendant had been in possession as tenant for about 23 years, and had never paid any rent until about 1896. That year he paid $100 under a written agreement under seal, which was renewed in writing under seal for the year 1897. These documents were introduced in evidence. There has been no written contract since 1897 but defendant has paid rent along since, but only in one year as much as $100. Plaintiff agreed with his mother, Mrs. Sarah Waters, that she was to have a home on the place as long as he owned it. She remained in possession, and had the use of the place as a home under this agreement, until the place was sold, which was in the latter part of 1903. Plaintiff did not claim any rent for 14 years, but paid the taxes. The defendant supported plaintiff's mother most of that time, but plaintiff contributed to her support. The defendant testified that he did not owe Waters any rent, and did not agree to pay him anything; that he held the place under Mrs. Sarah Waters; that the agreement between Mrs. Waters and the plaintiff was that she was to have control and possession of the place as long as she lived, and defendant held under her. Defendant supported Mrs. Waters for the use of the place. This was the agreement between them. He had been in possession 23 years continuously under this arrangement. His wife was her youngest daughter. Waters never demanded rent until 1896. He attempted to sell the place about that time, and on account of Mrs. Waters objecting to the sale, she claiming that she had a right to occupy it during her life, the sale was not consummated; and plaintiff, being mad, demanded rent of defendant, threatening to eject him from the place unless he paid rent. He agreed to pay rent rather than have a lawsuit. He could not read or write, and signed the contract by his mark. He paid the rent for that year, and renewed the contract for the next year. Since that time he has not paid one cent; has not agreed to pay anything; denies any promise of making payment as testified to by defendant. Mrs. Sarah Waters testified that the agreement between her and the plaintiff was that she was to have the possession and use of the place during her life; that there was a mortgage on the place, and the plaintiff agreed that, if she would make him a deed, he would pay the mortgage and allow her the possession and control as long as she lived. She was in possession under this agreement until the plaintiff sold the place and put her off. He never denied the agreement until recently. He now claims that the agreement was that she was to have the place as long as he owned it; but that is not correct. No rent has ever been demanded of her, and none has ever been paid. The reasons for demanding rent from Hodges are stated by her substantially the same as by him. The deed of 1896 was made because plaintiff said it was necessary on account of an old homestead which had been taken years ago. He repeated his agreement to allow her the use of the place as long as she lived when the deed of 1896 was made. She objected to the defendant's paying rent, and did not consider him under any obligation to pay it. The defendant also introduced the answer of Waters in an equitable suit brought against him by Mrs. Waters, in which he stated that his mother was entitled to...