Warehouses, Inc. v. Wetherbee

• Decision Date: 10 February 1948
• Docket Number: 16088,16096.
• Citation: 46 S.E.2d 894,203 Ga. 483
• Court: Georgia Supreme Court
• Parties: WAREHOUSES, Inc., v. WETHERBEE et al. GENERAL TIRE & RUBBER CO. v. WETHERBEE et al.

46 S.E.2d 894

203 Ga. 483

WAREHOUSES, Inc., v. WETHERBEE et al.

GENERAL TIRE & RUBBER CO. v. WETHERBEE et al.

Nos. 16088, 16096.

Supreme Court of Georgia

February 10, 1948

Rehearing Denied March 19, 1948.

Syllabus by the Court.

1. The Code, § 61-101, provides as follows: 'When the owner of real estate grants to another simply the right to possess and enjoy the use of such real estate, either for a fixed time or at the will of the grantor, and the tenant accepts the grant, the relation of landlord and tenant exists between them. In such case no estate passes out of the landlord, and the tenant has only a usufruct, which he may not convey except by the landlord's consent and which is not subject to levy and sale; and all renting or leasing of such real estate for a period of time less than five years shall be held to convey only the right to possess and enjoy such real estate, and to pass no estate out of the landlord, and to give only the usufruct, unless the contrary shall be agreed upon by parties to the contract and so stated therein.'

2. Under the rules of the common law, a grant of the mere right of use or occupancy in realty, no matter for what limited period conveyed an estate for years. Hutcheson v Hodnett, 115 Ga. 990, 993, 43 S.E. 422. An estate at common law is defined by 1 Bouv. Law Dict., Rawle's Third Revision, as 'the quantity of interest which a person has, from absolute ownership down to naked possession.' Citing Jackson v. Parker, 9 Cow. 73, 81. By a provision contained in the original Code of this State as adopted in the year 1861 (now Code, § 61-101), a grant of the mere right to use or occupy land was declared not to convey an estate in realty, but to pass a usufruct only. By a statutory amendment (passed in 1876) to this Code section, an additional provision was added to the end of the section, declaring that any lease of realty for a period of less than five years would be taken as passing a usufruct only, unless the instrument by its own terms expressly indicated a contrary purpose and intent. Accordingly, under the law of the Code as thus amended, it will be seen that any lease for less than five years which does not purport by its own provisions to create an estate for years will be taken to pass only a usufruct.

3. As to leases for as much or more than five years, the amendment to the Code, § 61-101, has no application, and the rule of the common law would prevail so as to pass an estate for years unless the agreement by its own terms, as is authorized by the above-quoted Code section, cuts down the interest passed to a mere usufruct. Thus, if the express terms or necessary implication of the words used in the agreement should in fact so provide, the Code section requires that they be given effect despite the rule of the common law to the contrary. Burnett & Bros. v. Rich &amp Co., 45 Ga. 211, 212. If, however, the lease does not expressly or by necessary implication so limit the interest, then and in such event the rule of the common law will continue to operate, with the result that the interest conveyed by such a lease for five years or more will still be taken to convey an estate for years. Accordingly, while a lease for five years or more which does not by its own terms interpret the intent of the parties to pass a lesser interest will be presumed now, as under the common law, to convey an estate for years, there is nothing to prevent a lease for five years or more from being narrowed by the terms of the contract itself so as to convey a usufruct only, since such is the clear purport of the rights and authority conferred by the Code section indicated.

(a) There may have been some confusion engendered by certain pronouncements made by this court and by the Court of Appeals, such for example to the effect that 'A lease of real estate for a period of five years passes such an estate from the landlord to the tenant as he may convey or contract to convey.' (Italics ours.) See as illustrative of the cases just mentioned, Schofield v. Jones, 85 Ga. 816, 823, 11 S.E. 1032; Anderson v. Kokomo Rubber Co., 161 Ga. 842, 846, 132 S.E. 76; Jones v. Fuller, 27 Ga.App. 84, 87(5a), 107 S.E. 544. But in all of these cases, the question involved was not whether an estate was conveyed; but the court was seeking to determine the nature and effect of an actual conveyance of an estate. Consequently, in the cases mentioned, the question now dealt with was not under consideration. It might be mentioned in this connection that, contrary to a somewhat common impression in the public mind, the term 'lease' does not imply a long-term relationship of landlord and tenant, as distinguished from a conveyance of an estate. The Code itself (§ 85-806) provides that 'When one grants to another an estate for years out of his own estate, reversion to himself, it is usually termed a lease.' That this court has never intended to hold that a lease for five years or more is ipso facto and as a matter of law an estate for years, is conclusively shown by numerous cases in which this court has construed the terms of such a lease for the purpose of determining whether or not the instrument by its express terms or by the necessary implication of its terms did or did not limit the interest passed to a mere usufruct. Hutcheson v. Hodnett, 115 Ga. 990, 993, 42 S.E. 422; Collier v. Hyatt, 110 Ga. 317, 35 S.E. 271; Griffith v. Smith, 155 Ga. 717, 118 S.E. 194; Johnson v. Brice, 151 Ga. 472, 107 S.E. 338.

4. Where an estate for years is not only prima facie, but in fact conveyed, the grantee would ordinarily that is, where no agreement appears to the contrary, have the right to assign his lease; although he cannot substitute another paymaster without the consent and acceptance of the landlord. Garner v. Byard, 23 Ga. 289, 68 Am.Dec. 527.

5. The lease in the instant case being for more than five years, and therefore prima facie conveying an estate for years, it becomes necessary to determine whether or not the instrument by its own provisions shows an intent of the parties to negative either by express terms or by necessary implication the presumption that an estate had been conveyed, so as to bring it down to a mere right to possess and enjoy the use of such realty as referred to in the Code, § 61-101.

6. The language of the instrument under consideration not only does not negative the presumption of an estate by its express language, or by provisions such as would be necessary implication forbid the usual legal presumption of an estate for years, but the language actually employed seems to indicate that the parties had in mind the usual legal import of a lease for more than five years at the time the agreement was entered upon. This division of the syllabus will be further discussed in the opinion.

J R. Wetherbee brought an action in the Superior Court of Fulton County, Georgia, against The General Tire and Rubber Company, Warehouses Inc., and Piston Ring & Parts Company. It was alleged that the plaintiff's predecessor in title, in November, 1939, entered into an agreement of lease for a period of ten years with an option to renew for five more years, as to property known as 481 Spring Street, Atlanta, Georgia, with General Tire & Rubber Company. A copy of the agreement of lease was attached to the petition. In April, 1940, General Tire & Rubber Company, with the written consent of the plaintiff's predecessor in title assigned the lease to The General Tire & Rubber Company, which assumed all obligations of General Tire & Rubber Company, and General Tire & Rubber Company was released from all further liabilities under the agreement. Immediately prior to to filing of the petition, The General Tire & Rubber Company had vacated the premises and had undertaken either to assign or sublease the property to Warehouses Inc., which in turn had assigned or subleased to Piston Ring & Parts Company without the consent of the plaintiff. It was further alleged that neither of the above-named parties had gone into possession; that the plaintiff had no adequate remedy at law, and should either attempt to go into possession, it would constitute a continuing trespass for the reason that such attempted assignment or sublease, without the consent of the plaintiff, was void. The prayers were: that injunctive relief be granted against entry into possession; that the assignment or sublease made by The General Tire & Rubber Company to Warehouses Inc., as well as that between Warehouses Inc. and Piston Ring & Parts Company, be cancelled and declared null...