Roby v. Newton

• Decision Date: 27 January 1905
• Citation: 49 S.E. 694,121 Ga. 679
• Parties: ROBY et al. v. NEWTON.
• Court: Georgia Supreme Court

49 S.E. 694

121 Ga. 679

ROBY et al. v. NEWTON.

Supreme Court of Georgia

January 27, 1905

Syllabus by the Court.

1. Under Civil Code 1895, § 3090, a remainderman is not entitled to claim immediate possession as a result of a forfeiture of the interest of the tenant for life, unless it appears that there has been both permissive and voluntary waste by the tenant, or one for whose conduct he is responsible, and it must also appear that the voluntary waste was committed wantonly, and in a manner evidencing an utter disregard of the rights of the next taker.

Fish P.J., and Lamar, J., dissent.

2. A petition by heirs at law against a dowress alleged acts of waste, and prayed for a forfeiture of the estate of the tenant in dower, and in the alternative for damages in the event the evidence did not establish a forfeiture. There was no special demurrer to the petition. Held, that at the trial the judge should have submitted both issues to the jury without any written request asking the submission of the question of damages.

3. There was no evidence to authorize a forfeiture, but there was evidence which would have authorized a finding in favor of the plaintiff on the question of damages, and it was error not to submit this issue to the jury.

Action by Kate M. Roby and others against Cornelia Newton. Judgment for defendant, and plaintiffs bring error. Reversed.

J. D Kilpatrick, for plaintiffs in error.

Greene F. Johnson, for defendant in error.

COBB J.

1. By the ancient common law the only persons punishable for waste were guardians in chivalry, tenants in dower and by the curtesy. Lessees for life and for years were not liable. This distinction was made for the reason that tenancies of the character first named were created by law, and the law must therefore furnish a remedy for a violation of the rights of the owner of the inheritance; and lessees for life or for years acquired their interest by contract with the owner of the fee, who could have protected himself against loss in this respect. The punishment for waste by the common law was single damages. 2 Scribner on Dower (2d Ed.) 795. This was also the punishment under the statute of Marlbridge. 3 Wash. Real Prop. (6th Ed.) p. 534. By the statute of Gloucester all tenants for life or years were made liable for waste, and it was provided that the tenant should forfeit "the thing that he hath wasted," and also pay treble damages. Id. It was determined that under the words above quoted the place was also forfeited, and that, if the waste be here and there over a wood, the whole wood should be forfeited, or, if in several rooms of a house, the whole house; but if it should be done in only one end of the wood or in one room of the house, if these places could be conveniently separated from the rest, the thing wasted and subject to forfeiture would be such places only, and not the whole estate. 2 Bl. Com. 283. There are statements that at common law a dowress was liable for permissive as well as voluntary waste; but Mr. Park, in his work on Dower, says that the researches of Mr. Hargrave, as well as his own, failed to find any authority to that effect. See Park on Dower, p. 357. In 28 Am. & Eng. Enc. Law (1st Ed.) p. 894, we find the statement that the better opinion seems to be that the tenant in dower is not liable for mere permissive waste, and that this is especially true if she deals with the estate as a prudent person would deal with it if he owned it absolutely. See, in this connection, 14 Cyc. 1014 et seq. In Parker v. Chambliss, 12 Ga. 235, it was held that the dowress was liable for waste committed on the estate, but that she did not thereby forfeit her estate and treble damages, as provided by the statute of Gloucester; the remedy against her being an action on the case in the nature of waste to recover the actual damage done to the estate, or injunction to restrain her from committing waste. It appears from the original record that that case was tried upon an agreed statement of facts, which set forth merely that the dowress had "committed" waste. It does not appear whether the waste was permissive or voluntary, but the use of the word "committed" would lead to the inference that the waste was of the latter character. The ruling in that case was to the effect that the statute of Gloucester was of force, so far as it made a tenant in dower liable in damages for waste, but that the harsh and stringent remedy of forfeiture and treble damages, which was doubtless intended for the benefit of the feudal heir, was not adapted to our conditions, and therefore never became a part of our law. The question as to what would be waste by a dowress was distinctly left open. The Code which went into effect in 1863 embraced within it the provisions now contained in the Civil Code of 1895, § 3090, which is as follows: "The tenant for life is entitled to the full use and enjoyment of the property, so that in such use he exercises the ordinary care of a prudent man for its preservation and protection, and commits no acts tending to the permanent injury of the person entitled in remainder or reversion. For the want of such care, and the willful commission of such acts, he forfeits his interest to the remainderman, if he elects to claim immediate possession." The dowress being a tenant for life, she holds her estate with all the privileges of such a tenant, and, unless otherwise provided, subject to all the liabilities of tenants of that character. See, in this connection, Rusk v. Hill, 121 Ga. 378, 49 S.E. 261. This section does not distinctly declare that a tenant for life is liable for actual waste, or will be enjoined from committing threatened waste, but it has been held since the Code that such is the law. Dickinson v. Jones, 36 Ga. 97; Smith v. Smith, 105 Ga. 106, 31 S.E. 135 (2); Kollock v. Webb, 113 Ga. 762, 39 S.E. 339. In Woodward v. Gates, 38 Ga. 213, it was said that the effect of the Code was to restore that part of the statute of Gloucester in reference to forfeiture for waste, but that the rule as to treble damages was not re-enacted. While the section of the Code does not use the terms "permissive waste" or "voluntary waste," or the term ""waste" at all, still an analysis of that section will indicate that its author had in mind the distinction between the two classes of waste. It imposes upon the life tenant the duty of exercising the ordinary care of a prudent man for the preservation and protection of the estate, and the failure to do this is permissive waste; and it also prohibits the commission of any act tending to the permanent injury of the person entitled in remainder or reversion, and the commission of such acts is voluntary waste. A liability both for permissive and voluntary waste is therefore imposed upon the tenant for life, and all such tenants are liable to the reversioner or remainderman for actual damages resulting from waste of either character.

It is now to be determined when waste will work a forfeiture. The Code does not use the language of the statute of Gloucester and limit the forfeiture to the thing wasted, but when a forfeiture results it is the "interest" of the tenant, which would seem to be his entire interest in the premises, without reference to what portion of the estate was the particular subject of the waste. After declaring the degree of care that the tenant shall exercise, and the acts which he is prohibited from doing, the Code provides that a forfeiture results "for the want of such care and the willful commission of such acts," if the remainderman elects to claim immediate possession. It is said that "and" should be here construed "or," and that the section should read that "a forfeiture results from the want of such care or the willful commission of such acts," or should read, "for the want of such care, as well as for the commission of such acts"; thus making a forfeiture result either from permissive or from voluntary waste. It is also contended that the word ""willful" should be construed to mean simply intentional, and not to convey the idea of malice, evil intent, or wantonness. Forfeitures are not favored by the law. Statutes providing forfeitures, and thereby imposing upon individuals penalties greater than the payment of the actual damages which their wrongful acts have caused others to suffer, are penal in their nature, and must be construed strictly against the persons claiming the forfeitures; practically the same rule of construction being adopted as is usually followed in the interpretation of criminal laws. See 22 Am. & Eng. Enc. Law (2d Ed.) 654. In a penal statute the word "willful" generally means with a bad purpose; an evil purpose; without ground for believing the act to be lawful. Hateley v. State, 118 Ga. 81, 44 S.E. 852, and cit. While in interpreting statutes it is sometimes permissible to read "and" "or," we do not think that in a statute which imposes a forfeiture or a penalty this change in wording should be made by construction when by the terms of the statute as framed it requires the concurrence of two things to work a forfeiture or...