126 Ga. 228 | Ga. | 1906
1. Where a tenant, in her counter-affidavit to a warrant to-evict her as a tenant holding over, avers that in the contract of tenancy the landlord also gave her an option to purchase at a stated sum “and. that in ease they [the landlord] decided to sell said plantation to any one, they would give her notice of same and the refusal to purchase,”' the option to buy as thus alleged was for the stated sum, and not for a less sum for which the landlord might sell to another. Under the-facts a tender was necessary; but a tender of a less sum than the-stated amount was not in compliance with the tenant’s obligation, and. did not give to the tenant such an equitable title as would prevent her eviction after she has held over beyond her term of tenancy.
2. Where in such ease the defendant had executed and filed the statutory bond with her counter-affidavit, after the part seeking equitable relief' had been dismissed, it was competent for the court to permit counsel for the plaintiff to introduce evidence to meet the remaining issue, tenancy or no tenancy, raised by the affidavit. Civil Code, §§4816, 4463. Latham v. Perryman, 77 Ga. 579, upon review, is reaffirmed. The evidence submitted for that purpose demanded the verdict, and it was not-erroneous for the court to direct the verdict and enter the judgment.
Judgment affirmed.