36 Ga. App. 591 | Ga. Ct. App. | 1927
W. S. Reese filed a petition asking that J. M. Finn, Hadden & Company, and L. F. Watson, sheriff, show cause why the court should not issue a money-rule to distribute $105 realized from the sale on September 2, 1926, of 65 acres of cotton and 45 acres of corn, all on the stalk and in the field, and 1,800 pounds of picked cotton, levied on as the property of Mrs. Z. E. McLendon and J. M. McLendon under a senior common-law execution in favor of Hadden & Company. The petition alleged that Reese was claiming the fund under a bill of sale coveting the said property, and under a mortgage fi. fa., and that J. M. Finn was claiming under a distress-warrant which had been placed in the hands of the sheriff with instructions to hold up the funds, and that the petitioner was entitled to the money.
The court, by consent, tried the case without a jury. The evidence was substantially as follows: In 1918 Mrs. Zenobia McLendon (hereinafter called Mrs. McLendon) executed to a corporation a security deed to lot of land 136 in Laurens county, Georgia. Mrs. McLendon and J. M. McLendon occupied the land and cultivated the crops thereon during the year 1926, “and since purchase of same by J. M. Finn.” On April 21, 1926, Mrs. McLendon exe
The controlling issue in the case is whether or not Finn’s claim of a landlord’s lien under the distress warrant proceeding is superior to Eeese’s claim under bill of sale. Though no counter-affidavit was interposed to that proceeding, Eeese had the right to show, under the money rule, if he could, that the distress warrant was abortive, for the reason that there was no relationship of landlord and tenant between the parties. Smith v. McPherson, 78 Ga. 84. Under the evidence this case will be considered just as though the name of J. M. McLendon never appeared in it. “The relation of landlord and tenant, either by express contract or by legal implication, is an essential basis of a distress warrant.” Hearn v. Huff, 6 Ga. App. 56 (64 S. E. 298). The evidence discloses no express contract of renting, but it is contended that one is implied. “When title is shown in the plaintiff and occupation by the defendant, an obligation to pay rent is generally implied; but if the entry was not under the plaintiff, or if possession is adverse to him, no such implication arises.” Civil Code (1910), § 3692. “One who makes to a creditor for the purpose of securing a debt, a deed to land, but retains possession of the land, does not thereby become the ‘tenant’ either of such creditor or of his vendee.” Ray v. Boyd, 96 Ga. 808 (22 S. E. 916). Indeed, after default on March 1, 1926, in payment of the debt secured by the security deed, Mrs. McLendon was not the tenant of the grantee or of Finn, and Finn had no ground for a distress warrant against her for rent. Stevens v. McCurdy, 124 Ga. 456 (52 S. E. 762).
2. But Finn insists that Reese estopped himself from foreclosing his bill of sale as a mortgage, by executing to Mrs. McLendon, for the purpose of levy and sale, an escrow deed to the said crops. The record in this regard is as follows: Reese introduced in evidence “an escrow deed from W. S. Reese to Mrs. Z. E. McLendon, dated October 6, 1926, and recorded in the clerk’s office . . October 7, 1926, which escrow deed was filed and recorded prior to the levy of mortgage fi. fa.” The deed itself sets out that it was made under section 6037 of the Civil Code of 1910, for the purpose of levy and sale, and for no other purpose. It takes no citation of authority to show that the evidence in this case is entirely insufficient to estop Reese from foreclosing his bill of sale as a mortgage.
Judgment affirmed,.