Stanley v. Stembridge

• Decision Date: 15 October 1913
• Citation: Stanley v. Stembridge, 140 Ga. 750, 79 S.E. 842 (Ga. 1913)
• Parties: STANLEY v. STEMBRIDGE.
• Court: Georgia Supreme Court

79 S.E. 842

140 Ga. 750

STANLEY v. STEMBRIDGE.

Supreme Court of Georgia

October 15, 1913

Syllabus by the Court.

On the trial of an issue arising under a statutory proceeding to dispossess a tenant and a counter affidavit denying that the defendant held under the plaintiff (Civil Code 1910, § 5385 et seq.), where the evidence showed that the plaintiff had purchased the land and taken a conveyance from the former owner, and that another as his agent had entered into a contract of rental with the tenant who had not taken possession under the former owner, but the agent took a note for the rental in his own name and then assigned it to his principal "for value," such note and assignment were admissible in evidence.

Where an owner of land contracted with a tenant for a term of one year, and after the tenant took possession the owner conveyed the land to another, who, through an agent, made a new contract of rental with the tenants for the same term, on the trial of an issue arising under a statutory proceeding begun by the purchaser, after the end of the term, to dispossess the tenant, who refused to pay the rent or to surrender possession, and who in his counter affidavit denied holding under the plaintiff, the deed from the original landlord to the plaintiff was admissible in evidence.

Under the facts indicated in the preceding headnotes, it would not prevent a recovery by the plaintiff for the defendant to testify merely that he had heard that his original landlord had sold the property, that he had thereupon given the note for rental to another, and that thereafter his original landlord had told him that she had not sold the place and would not do so, whereupon he paid the rent for that year to her and agreed with her to rent from her another year and remained in possession.

Under the statutory proceeding for the removal of a tenant failing or refusing to pay rent or holding over beyond his term there cannot be a recovery of double rent except after a demand for possession.

(a) Such a proceeding is not a proper method of collecting single rent due by contract, prior to demand for possession.

If a tenant for a year continues in possession after the expiration of his term, without any right so to do, he is a tenant at sufferance.

(a) If after the expiration of the term a demand for possession is made by the landlord and is refused, upon the trial of an issue arising in a proceeding under the statute for his summary dispossession, with a counter affidavit denying that the defendant holds under the plaintiff, the double rent recoverable for the time elapsing after the end of the term is double the value of the property for rent, not double the contract price applicable to the term.

Where the rental to be paid by contract during the term was a specific amount of cotton, and the only evidence as to the value of the place for rent after the expiration of the term was that it was worth a stated number of pounds of cotton per annum, with no evidence as to the value in money of the cotton, a verdict finding a stated sum of money as rent for the year covered by the term, and another sum as rent for the time elapsing after the expiration of the term, was not supported by the evidence, nor were charges of the court authorizing such a finding authorized by the evidence.

Error from Superior Court, Baldwin County; Jas. B. Park, Judge.

Action by G. M. Stembridge against H. E. Stanley. Judgment for plaintiff, and defendant brings error. Reversed.

On January 20, 1912, G. M. Stembridge made an affidavit, under the statute, alleging that H. E. Stanley was in possession as tenant of a described tract of land, the property of the affiant; that the tenant failed to pay the rent; that he rented the premises for the year 1911, the term expiring on December 31st; that the affiant had made demand for possession and it had been refused; and that he made the affidavit in order that a warrant might be issued to remove Stanley from the premises. A warrant was issued. Stanley filed a counter affidavit, alleging that he did not hold the premises either by lease, rent, or otherwise from the plaintiff. The case was returned to the superior court for trial. The evidence showed in brief as follows: Mrs. Stanley was in possession of the property and rented it for the year 1911 to Stanley for 1,000 lbs. of lint cotton. He went into possession about the 1st of January. In February Mrs. Stanley made a deed conveying the place to Stembridge, the plaintiff. J. E. Stembridge, his brother, acting as his agent, agreed to rent the property to Stanley for the year for 400 pounds of lint cotton and took a note therefor, payable to J. E. Stembridge or order. The payee entered on this a written assignment to G. M Stembridge "for value" and delivered it to the latter. Stanley remained in possession. When the note became due, he refused to pay it or to deliver possession at the end of the year. The only defense made by him was that he testified that after he had been in possession under his contract of rental from Mrs. Stanley about a month he heard that J. E. Stembridge had bought the place. He said: "I then went to see Mr. Gene [J. E.] Stembridge and told him that I heard that he had bought the place upon which I was living, and that I would like to rent it from him. He then agreed to rent me the place for 400 pounds of cotton, and I executed and delivered to him the rent note introduced by the plaintiff. A few days after this trade with Mr. Gene Stembridge, I saw Mrs. Stanley and told her about the transaction between Mr. Stembridge and myself. Mrs. Stanley then told me that she had not sold the place and did not intend to sell it. Mrs. Stanley demanded the rent from me in the fall of 1911, and I paid her the thousand pounds that I had agreed to. I went into possession of the place on or about January 1, 1911, as tenant of Mrs. Stanley, and did not turn the possession back to her before I rented from Mr Stembridge. I am now in possession of the land, as I rented the place again from Mrs. Stanley for the year 1912." The jury found for the plaintiff $72 as rent for 1911 and $139.92 as rent for 1912. The defendant moved for a new trial, which was refused, and he excepted.

Sibley & Sibley, of Milledgeville, for plaintiff in error.

Allen & Pottle, of Milledgeville, for defendant in error.

LUMPKIN, J. (after stating the facts as above.)

G. M. Stembridge instituted a proceeding under the Civil Code of 1910, § 5386 et seq., to have Stanley removed from possession of certain premises. He alleged two grounds therefor: (1) That the defendant had rented the place for the year 1911 and failed and refused to pay the rent. (2) That the defendant held over beyond his term and refused to deliver possession. Demand for possession was alleged. The defendant filed a counter affidavit denying that he held by lease, rent, or otherwise under the plaintiff. After a verdict in favor of the plaintiff and the refusal of a new trial, the case was brought to this court.

1. In renting the place, Stanley dealt with J. E. Stembridge, a brother of the plaintiff, and gave to J. E. Stembridge a note payable to his order. The evidence showed that the land had belonged to Mrs. Stanley, who conveyed it to G. M. Stembridge, and that his brother was acting as his agent in making the contract of rental with Stanley. After taking the note in his own name, the agent assigned it to his principal. Objection was made to the admission in evidence of the note on the ground that it was not made to G. M. Stembridge as landlord, but that he appeared to be the assignee thereof, which did not authorize him to proceed to dispossess Stanley by summary proceedings under the statute. The plaintiff contended that he was the landlord and that the defendant had failed to pay the rent. The rent note was admissible to show that the rent was unpaid, and that it was held by the plaintiff and was not outstanding in the hands of another. If there were no other evidence on the subject, it might not show a right of dispossession by summary process, though it would carry the right to collect the rent. But when accompanied by evidence that the plaintiff was the grantee of the title, and that the payee of the note was merely his agent, the note and assignment were admissible.

2. While the issue in such a proceeding is not one involving the validity of the landlord's title, where it appeared that the defendant had first rented the property from another and shortly afterward had made a contract of rental with the agent of the plaintiff, it was competent to show that in the meantime the original landlord had made a deed to the plaintiff, who thereupon assumed control, and through his agent made a new contract of rental with the defendant. The deed was properly admitted in evidence.

3. It was argued that, as Stanley first went into possession as tenant of Mrs. Stanley, he was estopped from denying her title or from attorning to another. This rule is generally correct as between landlord and tenant; but here Mrs. Stanley is not asserting any right or setting up any estoppel against Stanley. He seems to be trying to set up an alleged estoppel as between him and her in order to defeat the action of another from whom he later rented and to whom he failed to pay rent. In Hodges v. Waters, 124 Ga. 229, 52 S.E 161, 1 L.R.A. (N. S.) 1811, 110 Am.St.Rep. 166, 4 Ann.Cas. 106, it was recognized that, where a person was in possession as tenant of one, he might neverthless estop himself by contracting also with another claimant as his landlord, at least so far as to compel him to pay rent during the agreed term, though he might set up after its expiration that he held under the original landlord and that the person with...