44 S.E.2d 388 | Ga. Ct. App. | 1947
A tenant at will or at sufferance, holding over after a demand for possession by the owner or by the new lessees of such owner, is not liable in damages to such new lessees for a failure or refusal to surrender possession to the owner or to the new lessees, where such new lessees hold no estate in said premises but only the usufruct.
The defendant filed general and special demurrers to this petition. The trial judge sustained the general demurrer, and the plaintiffs excepted. It appears from the allegations of the petition that the premises were owned by Mrs. Margaret W. Kistner, as executrix of Byron C. Kistner, and that she leased or placed the premises in possession of one Parker, who had a stock of goods located therein. Parker was placed in the hands of a receiver by the superior court, and this receiver took charge of the premises and goods located therein. While this receiver was in possession of the premises under an order of the superior court, the owner leased the premises to the plaintiffs. After the execution of the lease to the plaintiffs, the receiver sold the stock of goods to the defendant, who went into possession of the premises. Several months after the defendant went into possession of the premises, the plaintiffs demanded possession of the premises from him, and the owner also demanded possession of the premises. Later, the owner instituted dispossessory-warrant proceedings against the defendant and acquired possession of the premises. The plaintiffs, as the new lessees of the premises, seek in the present action to recover damages of the defendant for withholding possession of the premises after demands by the plaintiffs and the owner and until he surrendered possession to the owner, when dispossessed under the proceedings instituted by her, and for the cost of their attorney's fees incurred in ascertaining the way to obtain possession of the premises.
The court did not err in sustaining the general demurrer and in dismissing the action. It appears from the allegations of the petition that the defendant went into possession of the premises under a former tenant, and that he remained in possession for several months without objection from the landlord or the new lessees. The fact that the owner of the premises leased the same to the plaintiffs while the defendant was in possession thereof as a tenant at will or a tenant at sufferance, did not make the defendant a tenant of the new lessees or create any contractual relationship between them. Any right to proceed against the defendant as a tenant holding over remained in the owner of the premises. In this connection, see McBurney v. McIntyre,
Under the allegations of the petition in the present case, the plaintiffs, as holders of the usufruct, could not maintain an action for damages directly against a tenant of the owner for holding *663 possession of the rented premises after demands for possession by such owner and by the lessees of such owner, and the trial judge did not err in so holding and in dismissing the petition on general demurrer.
Judgment affirmed. Felton and Parker, JJ., concur.