161 Ga. 842 | Ga. | 1926
Lead Opinion
Some time in May, or earlier, in 1920, Thomas J. Anderson, the plaintiff, leased from 'William H. Black a certain building in the City of Atlanta, known as Nos. 103-105 Noctli Pryor Street, at a stipulated annual rental, for a period of five years, to commence on September 1, 1920. The Kokomo Eubber Company, the defendant, was already in possession of the store known as No. 103, as a tenant under Black for a term ending on August 31, 1920, paying a monthly rental of $125. Anderson, with the consent of Black, subleased this store to the Hughes Piano Company for five years at $300 per month, to commence at the expiration of the lease of the defendant, which was notified of the sublease several months before the end of its term. The defendant did not quit as it ought to have done under its lease, and Anderson was unable to give possession to the Hughes Piano Company. After Anderson had made several demands on the defendant to vacate, in order that the Hughes Piano Company might enter, he notified the defendant, on September 3, that the Piano Company would cancel its lease unless permitted to enter without further delay, and that Anderson would hold defendant responsible for any loss which he sustained by reason of its continued occupancy. This notice was ignored; and the Piano Company notified Anderson, on September 8, that the contract between them was cancelled. The Piano Company moved into another building, and the fruits of Anderson’s contract with this company were lost. The defendant did not vacate the premises until the latter part of September, 1920. It had claimed an inability to get possession of another place it had rented. In response to the demands for possession, it replied with a positive refusal, claiming that it would be liable only for double rent. Nothing was done by Black amounting to' an acquiescence in the holding over. He brought proceedings to eject, but not until after the Piano Company had withdrawn its contract. Anderson, as
The defendant demurred upon the ground that “said petition sets forth no cause of action, . . for the reason that the damages therein sought to be recovered are too remote and contingent, 'and not susceptible of computation, and not within the contemplation of the parties;” “that the petition shows that plaintiff could have reduced the damages to a sum not exceeding double rent for the month of September, 1920, had he promptly resorted to the statutory mode of dispossession provided by law; and if said course had been pursued by the plaintiff even as late as the 4th of September, 1920, defendant could have been expelled from the premises in three days time, which date was prior to the 8th of September, the date upon which the five years lease of the Hughes Piano Company is alleged to have been cancelled.” The demurrer prayed judgment by the court that the petition set forth no cause of action, “except to the extent of double rent of the premises” during the time of the holding over. The demurrer was overruled, and the defendant excepted. The exceptions were dismissed by the Court of Appeals (Kokomo Rubber Co. v. Anderson, 29 Ga. App. 98, 114 S. E. 64), since the judgment made no final disposition of the case, the demurrer not disputing that a cause of action was set forth for some amount. Leave was given, however, that the official copy of the bill of exceptions of file in the office of the clerk of the trial court should operate as exceptions pendente lite. The original answer, which, consistently with the demurrer, contended that the measure of the plaintiff’s damage
The facts are as stated by the Court of Appeals in connection with its decision, and they are restated here because they are necessary to an understanding of the opinion which follows. The Court of Appeals reversed the judgment of the trial court, and the plaintiff filed its petition for certiorari, which was granted by this court, and the case is thus brought here for review. In the petition for certiorari error is assigned upon the ruling contained in the following portion of the decision rendered by the Court of Appeals: “The suit is not sustainable under the Civil Code, § 4471, providing that the bare right of possession of land authorizes the recovery of damages for the withholding of the right, for two reasons: First, if before entry Anderson had a right of possession, he had sold the same to the Piano Company; second, the plaintiff’s lease from Black was one in reversion, giving the plaintiff no interest in the property, nor any right of possession until entry. His lease was to commence in the future, at the expiration of the term of the defendant. ‘At common law the estate in a lease, to commence in futuro, did not vest until the tenant had accepted it by entering in possession; but until possession he held the right of entry, which was called his interest in the term, or interesse termini. Field v. Howell, 6 Ga. 423 (3), 431; 6 R. C. L. 683, § 124; 4 Kent’s Commentaries (14th ed.), 97. The defendant, therefore, violated no right of possession of the plaintifE. Prior to the plaintiff’s entry, his rights were only in his contract with Black. His lease did not make him the defendant’s landlord. Any right, therefore, to proceed against the defendant as a tenant holding over remained in Black. ‘ The right to maintain an action against a tenant for damages for wrongful holding over is generally held to be restricted to the landlord; and it has been held, though the authorities are not in'entire accord, that such an
Plaintiff in certiorari makes, among others, the contention that the reason advanced by the Court of Appeals in holding that the action is not sustainable under section 4471 of the Civil Code, to wit, that “plaintiff’s lease from Black was one in reversion, giving the plaintiff no interest in the property, nor any right of possession until entry,” is based upon a misconception of the Code section last referred to, and that this section of the Code gives effect to the statute of uses and makes the principle of the statute applicable to the case presented by the facts in this record. Section 4471 of the Civil Code is in the following language: “The bare right of possession to lands authorizes their recovery by the owner of such right, and also damages for the withholding of the right.” And with the contention of the plaintiff, that this section is applicable to the case as made by the petition, we agree. The plaintiff had a written lease from the owner of the premises in question, for a term of ffve years. This created an estate in realty in the lessee. An estate for years, if it be in lands, passes as realty in this State. Civil Code, § 3685. Upon the termination- of the lease of Kokomo Rubber Co. with Black on August 31, 1920, the right of possession in Anderson became complete, and that right of possession was in no way dependent upon a prior entry. The Court of Appeals quotes from the case of Field v. Howell, 6 Ga. 423, as supporting their ruling in this portion of the decision. But upon careful consideration of that case it seems to support the conclusion which we have reached, different from that reached by the Court of Appeals. In that case it was said: “At common law, the estate in a lease, to commence in futuro, did not vest until the tenant had accepted it by entering in pos- . session; but until possession, he held the right of entry, which
In view- of what is ruled above as to the plaintiff’s right of possession of the premises, the plaintiff stated a case for the recovery of damages against the defendant for withholding possession,— not based upon breach of the contract which the defendant had with Black, but for the tort resulting in damages to the right of possession. We therefore conclude that the trial court properly overruled the demurrer to the petition, and consequently that the Court of Appeals erred in deciding and adjudging' that this ruling of the trial court was error, and in further holding that it was “consequent error to refuse the defendant’s motion for a new trial.” There are other grounds taken in the petition for certiorari, with which we do not deal, as the error which we have pointed out above is fundamental, and the principle that we have ruled in this decision determines the plaintiff’s right to maintain the action as brought and for the damages sought to be recovered. Nor have we dealt with certain special grounds of the motion for a new trial, inasmuch as the Court of Appeals did not pass upon them, no ruling upon the part of that court being required under their view upon the fundamental and controlling question in the case. But inasmuch as the judgment of the Court of Appeals is reversed, the case is remanded for another hearing before that court, and the special grounds of the motion can there be reviewed and passed upon.
Judgment reversed.
Dissenting Opinion
dissenting. I am of the opinion that the decision
