Motor Aid, Inc. v. Ray

• Decision Date: 11 July 1936
• Docket Number: 25418,25423.
• Citation: 187 S.E. 120,53 Ga.App. 772
• Parties: MOTOR AID, Inc., v. RAY et al. RAY et al. v. MOTOR AID, Inc.
• Court: Georgia Court of Appeals

187 S.E. 120

53 Ga.App. 772

MOTOR AID, Inc., v. RAY et al.

RAY et al. v. MOTOR AID, Inc.

Nos. 25418, 25423.

Court of Appeals of Georgia, First Division

July 11, 1936

Error from Superior Court, Gordon County; C.C. Pittman, Judge.

Suit by George Ray and others against Motor Aid, Incorporated. Judgment for plaintiffs, and defendant brings error, the plaintiffs filing a cross-bill of exceptions.

Judgment reversed, and cross-bill dismissed.

Syllabus by the Court.

Where a tenant in common, without the knowledge and consent of his cotenants, leases to another the common property for a period of five years, such lease, while not binding upon the nonconsenting tenants in common, is nevertheless binding as to the lessor, and conveys an estate in the property to the lessee for a period of five years equal to that held by the lessor, and where the lessee goes into possession of the property, the remaining nonconsenting cotenants cannot employ a dispossessory warrant to evict the lessee. The trial judge erred in directing a verdict in favor of the plaintiffs.

J.G.B Erwin, of Calhoun, for plaintiff in error.

Maddox Matthews & Owens, of Rome, and Joe M. Lang, of Calhoun, for defendants in error.

MacINTYRE Judge.

On December 4, 1934, George Ray, Boyce Ray, Vernon Ray, Stewart Ray, and Mrs. Annie Mae Bolding made affidavit for the purpose of having issued a dispossessory warrant against the defendant, Motor Aid, Inc., whom they alleged was in possession of certain property owned by them as tenants in common and was holding over and beyond the term for which the same was rented. The defendant filed a counter affidavit setting up substantially the following facts: That on October 17, 1929, J.W. Ray, as agent for the above-named plaintiffs, entered into a lease contract with James H. Reeve, whereby they leased to him the property in question, for a term of five years. That this lease was to expire November 30, 1934. That on March 1, 1930, this lease agreement was transferred and assigned by J.H. Reeve to the defendant, Motor Aid, Inc. That on December 17, 1928, the above co-owners of the property gave to the Calhoun National Bank a security deed to the above property to secure a note in the sum of $2,500. That on May 3, 1930, one of the cotenants, Mrs. R.B. (Annie May) Bolding, paid this note and the bank transferred to her the note and the security deed. That until May 3, 1930, Motor Aid, Inc., paid the amount of the rent, $50, each month to the Calhoun National Bank, and after that date up through November, 1934, the rent was paid to Mrs. Bolding. That in February, 1934, Mrs. Bolding, as agent for the above-named cotenants, executed to the defendant a lease contract under seal to the same property for another term of five years, said contract to commence January 1, 1935, and made a further oral lease contract with the defendant that in consideration of certain repairs to be made by it, they were to have the property during the month of December, 1934.

The evidence developed substantially the above facts. Mrs. Bolding testified that none of her cotenants had given her authority to act for them in leasing the property, and this fact seems to be without contradiction; that she had collected the rents from defendant under an agreement with her cotenants that she collect them until the note transferred to her was paid; and that she executed to the defendant the lease set up in its answer.

The trial judge directed a verdict for the plaintiffs and that ruling is before this court on writ of error.

There can be no doubt that the lease executed in February, 1934, by Mrs. Bolding to the defendant, was not binding on the other nonconsenting tenants in common. This is true for two reasons, each of which is sufficient within itself: First, a tenant in common has no power to lease the common property, without the consent of the remaining cotenants, and such a lease, as to those cotenants not assenting thereto, is not binding. 7 R.C.L. 876, § 71; Roberts v. Burnett, 164 Ga. 64, 137 S.E. 773; Charleston & Western Carolina Ry. Co. v. Fleming, 118 Ga. 699, 45 S.E. 664; Bova v. Clemente, 278 Mass. 585, 180 N.E. 611; Wright v. Kaynor, 150 Mich. 7, 113 N.W. 779. We have already pointed out that the evidence disclosed without contradiction that none of the other tenants in common had authorized Mrs. Bolding to act for them in leasing the property. Second, it appears that the lease in question was executed under seal, and there was no showing that Mrs. Bolding's authority to execute such instrument as agent for the remaining tenants in common was founded on an instrument executed under seal. See Featherston v. Reese, 36 Ga.App. 379, 136 S.E. 811, and cit. We are unable to agree with the contention of the defendant that because Mrs. Bolding paid and had transferred to herself the security deed, which had been jointly executed by her and the other tenants in common to the Calhoun National Bank, and had for a period of years collected the rent under the original lease, that she, as a matter of law, had the power and authority to lease the property without the consent of the other tenants in common. Although we have not carefully examined the authorities on this phase of the case, we are doubtful whether the defendant has the right in this proceeding to set up an outstanding title in Mrs. Bolding, after having accepted a lease recognizing the remaining tenants in common as landlords. However, we make no ruling on this question, it being unnecessary under the view we take of the merits of the above contention of defendant. "Cotenants stand in such confidential relation to one another in respect to the common property and the common title to it, that it would generally be inequitable to permit one, without the consent of the others, to buy in an outstanding adversary claim or title and assert it for his exclusive benefit, thereby to undermine the common title and injure and prejudice the interest of his cotenants. In such case the purchasing tenant is regarded as holding the claim so purchased in trust for the benefit of all his cotenants, in proportion to their respective interests in the common property, who seasonably contribute their share of his necessary expenditures." 7 R.C.L. 857, § 51. In the present case Mrs. Bolding held the security deed for the benefit of all of her cotenants, in the protection of the common title. Her right to contribution was met by the agreement of all of the cotenants that she alone should receive the rents from the property until her debt was discharged. However, under the circumstances, it cannot be said that her purchase of the security deed added to or enlarged her claim to the property. In receiving the rents, she is presumed to have collected them for the benefit of all of the common owners.

However while we are forced to differ with counsel for defendant on this question, yet we are in agreement that the trial judge erred in directing a verdict for the plaintiffs. While it is true, as we have already stated, that the lease was not binding as to her cotenants, yet on the other hand there is no valid reason why it is not binding on her as to her interest in...