Willis v. Harrell

• Decision Date: 14 November 1903
• Citation: 45 S.E. 794,118 Ga. 906
• Parties: WILLIS v. HARRELL.
• Court: Georgia Supreme Court

45 S.E. 794

118 Ga. 906

WILLIS v. HARRELL.

Supreme Court of Georgia

November 14, 1903

Syllabus by the Court.

1. Exception to the overruling of a motion to dismiss a proceeding to dispossess a tenant holding over beyond his term on account of alleged defects in the affidavit cannot be properly made the ground of a motion for a new trial.

2. Where no time is specified for the duration of a tenancy, the law construes it to be for the calendar year.

3. A tenant at will is in possession by right with the consent of the landlord, either express or implied; a tenant at sufferance is a wrongdoer, and is in possession without the consent of the landlord, but as a result of his laches or neglect.

4. A tenant by the month, whose term ends with the calendar year is, after the expiration of his term, a tenant at sufferance and continues as such until there has been some affirmative action by the landlord which has the effect of converting the tenancy into some other form.

5. A tenant at sufferance is not entitled to notice to quit.

6. A purchaser of realty from a landlord during the term of the tenant is entitled, after the expiration of the term, to dispossess the tenant by a dispossessory warrant.

7. No lapse of time will bar a proceeding under Civ. Code 1895, § 4813, et seq., so long as the relation of landlord and tenant exists.

8. A tenant at sufferance is not liable for double rent until after demand for possession.

9. The remedy provided by the sections of the Code above referred to, to dispossess a tenant holding over, is applicable in any case where the relation of landlord and tenant exists without regard to whether the tenant entered under the contract of rental or was in possession at the time such contract was made.

10. "The rule that a tenant cannot set up a title to the rented premises in opposition to that claimed by the landlord is applicable, although at the time the contract of rent was made the tenant was in possession, claiming title to the premises."

11. The verdict was authorized so far as it found that the plaintiff was entitled to the possession of the premises in dispute, and there was no error requiring the granting of a new trial so far as this issue was concerned. There was error in the charge in reference to the liability of the defendant for double rent; and the judgment will be affirmed upon condition that the plaintiff write off all rent for the period of time anterior to the demand for possession. Upon failure to do this, the judgment will be reversed; the costs of this writ of error to be taxed in either event against the defendant in error.

Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.

Action by J. W. Harrell against John Willis. Judgment for plaintiff. Defendant brings error. Affirmed on condition.

R. D. Feagin, Hall & Wimberly, and J. E. Hall, for plaintiff in error.

W. C. Nottingham and Bacon, Miller & Brunson, for defendant in error.

COBB J.

J. W. Harrell, Sr., made an affidavit that John Willis did, on February 10, 1892, rent from J. W. Harrell, Jr., a described parcel of land; that the land was rented by the month; that the term of tenancy has expired, but the tenant continues to hold possession of the premises over and beyond the time for which the same were rented to him; that deponent, on December 10, 1892, purchased from J. W. Harrell, Jr., the land described, and on October 9, 1902, demanded possession from Willis, who refused to deliver possession. Upon this affidavit the usual warrant to dispossess a tenant holding over was issued by the justice of the peace before whom the affidavit was made. The affidavit and warrant were exhibited to Willis, who in due time filed a counter affidavit, in which he denied all of the averments in the affidavit except that relating to the demand for possession, and also denied that he held the premises by lease, rent, at will, by sufferance, or otherwise from either of the Harrells. The issue thus made came on to be tried, and resulted in a verdict finding that the plaintiff was entitled to the possession of the premises, and also that the defendant was liable to pay $264 double rent. The defendant made a motion for a new trial, which was overruled, and he excepted.

1. Complaint is made in one ground of the motion for a new trial that the court erred in overruling a motion to dismiss the proceeding on account of alleged defects in the affidavit. The well-settled rule that the overruling of objections by demurrer or otherwise to the plaintiff's pleading cannot be properly assigned as error in a motion for a new trial is applicable in a case of this kind.

2. It appears from the evidence for the plaintiff that Harrell, Jr., on February 10, 1892, purchased the land in controversy from Carter, and that at the time of this purchase the defendant was in possession claiming to hold adversely. According to the evidence of Harrell, Jr., after the purchase the defendant agreed to rent the premises from him, and to pay $2.75 per month, but no time was specified for the termination of the tenancy. It also appeared from this testimony that the stipulated rent was paid for several months, and that on December 10, 1892, Harrell, Jr., conveyed the property to Harrell, Sr. According to the uncontradicted evidence, no rent was ever paid to Harrell, Sr., and no rent was ever paid to or demanded by any one after December 31, 1892. It will thus be seen that under the testimony of Harrell, Jr., the relation of landlord and tenant existed between him and the defendant, and that the tenancy was by the month, with no time specified for its termination. The Code declares that, where no time is specified for the termination of the tenancy, the law construes it to extend to the end of the calendar year. Civ. Code 1895, § 3132. The case falls within the very terms of this section, and therefore the tenancy created by the agreement between Harrell, Jr., and the defendant terminated on December 31, 1892.

3, 4. What was the character of the defendant's holding after December 31, 1892? The defendant contends that he was a tenant at will, and that, therefore, two months' notice was necessary to terminate the tenancy. Civ. Code 1895, § 3133. A tenancy at will is generally created by express agreement, but it may arise by operation of law--as where a parol contract creating the relation of landlord and tenant is made for a term exceeding one year. Civ. Code 1895, § 3117. See, in this connection, the remarks of Mr. Chief Justice Warner in Western Union Tel. Co. v. Fain, 52 Ga. 18. It is not pretended that there was any express agreement between Harrell, Jr., and the defendant, or between the latter and Harrell, Sr., that after the expiration of the calendar year the defendant should hold at will. There is nothing in the record to show a state of facts from which a tenancy at will would arise by operation of law. After the tenancy terminated on December 31, 1892, the defendant remained in possession, but nothing was ever done by either of the Harrells in relation to the property until the present proceeding was instituted. No rent was demanded; no rent was paid. The defendant remained in possession without objection but without the consent of the owner, so far as the record discloses. If there had been anything to indicate consent on the part of the owner for the tenant to hold possession after the expiration of the term, a tenancy at will might have been created. But the record discloses nothing but possession by the tenant after the term, and mere neglect by the landlord to do anything in reference to the property, its rent, or its possession. What is his status after the termination of the tenancy under the circumstances above enumerated? After the expiration of the calendar year in which the contract of rental was made, the defendant became a tenant at sufferance, and so continued until something was done by agreement with the landlord, either express of implied, which converted the tenancy at sufferance into some other class of tenancy. Blackstone says: "An estate at sufferance is where one comes into possession of land by lawful title, but keeps it afterwards without any title at all. As if a man takes a lease for a year, and after a year is expired continues to hold the premises without any fresh leave from the owner of the estate." 2 Bl. (Cooley) 150. "A tenant on sufferance is one who entered by a lawful demise or title, and, after that...