Fletcher v. Fletcher, 123 Ga. 470

Fletcher v. Fletcher

123 Ga. 470 | Ga. | 1905

Cobb, J.

1. When a tenant, either with or without the consent of the landlord, sublets the premises and places the subtenant in possession, and the latter, claiming only under the tenant, remains in possession after the term has expired, such possession is a holding over of the tenant, and authorizes a proceeding by the landlord against the tenant as a tenant holding over. A tenant holding over is liable for double rent, and he can not *472evade this liability by so arranging the possession that the same is not actually in him, but in another claiming under him. The landlord is permitted, under certain circumstances, either during the term or after it has expired, to treat the subtenant as his own tenant and to proceed against him as such, either for rent or for possession. Hudson v. Stewart, 110 Ga. 37, and cit. But the landlord is not compelled to do thishe may still treat the person with whom he dealt as his tenant, and nothing done by such person can relieve him from any of the liabilities to' the landlord which the relation imposes. The purpose of the summary proceeding which the law gives against a tenant holding over is to oust the tenant and place the landlord in possession. If the landlord sees fit to treat the subtenant as his tenant and proceed against him as such, he can not afterwards hold the original tenant to any liability for double rent; for this liability arises under the statute and is an incident to the proceeding to oust the tenant. The landlord is therefore entitled by this summary proceeding to have possession delivered to him and a judgment against his tenant for double rent. To completely accomplish the purpose of the statute and give to the landlord a judgment for doutfle rent against the person with whom he has dealt, it is, therefore, necessary that the proceeding should be so directed that the actual occupant would be ousted and a judgment for the double rent entered against the tenant. This can not be accomplished unless both the tenant and the subtenant are parties to the proceeding. The affidavit as amended set forth the exact condition of affairs as they existed. The tenant was holding over, not by himself but by another, and the landlord desired possession from the subtenant and a judgment for double rent against the tenant. This could be accomplished by making them both parties to the proceeding. In Richardson v. Harvey, 37 Ga. 229, there is a dictum by Mr. Chief Justice Warner to the effect that in a proceeding against a subtenant to evict him as a tenant holding over, it was discretionary with the court whether the original tenant should be made a formal party to the proceeding ; that he could defend in the name of the subtenant; but that the court might permit him to be made a formal party if it saw fit to do so. In that case the court had refused to allow the tenant to be made a party; and this judgment was not *473reversed, simply for the reason that it appeared from the record that he had not been deprived of any substantial right by this ruling, as his defenses had been fully made in the name of his subtenant. If in a proceeding against the subtenant, where the landlord has elected to treat him as his tenant, the original tenant could, in the discretion of the court, be made a party defendant, it would seem for a stronger reason that the landlord, at the-inception of the proceedings, could make both the original tenant and the subtenant or actual occupant parties to the eviction proceedings. There was no error in overruling the motion to dismiss the proceeding. In the case of Grizzard v. Roberts, 110 Ga. 41, the persons who were sought to be made parties in the proceeding claimed to be the owners of the land and desired to set up a claiiji adverse to that of the landlord, alleging that the defendant was their tenant. They were entire strangers to the only issue made by the proceeding, and therefore could not under any circumstances be made parties to the case.

2, 3. The motion for a new trial contains numerous grounds, ■assigning error upon extracts from the charge, and upon the refusal of various requests to charge. The case turned upon- the ■question whether Christmas had gone into possession, before the term expired, as the tenant of George H. Fletcher, or as the tenant of the plaintiff, or whether George H. Fletcher had, during the term, abandoned possession, Christmas entering as an intruder and having no connection with George H. Fletcher, and after the term had expired made a contract of rental with George H. Fletcher, who then claimed to be the owner of the premises by a ■title paramount to that of the plaintiff. This issue was fairly submitted to the jury under the judge’s charge. Those portions of the charge that were excepted to were not erroneous for any reason assigned, and the requests to charge, so far as legal and pertinent, were covered by the general charge. The evidence fully authorized the finding that the possession of George H. Fletcher during the term and the entry of Christmas were the result of a collusive arrangement to defeat the rights of the plaintiff; and therefore neither Christmas nor George H. Fletcher could, as against the plaintiff in the proceeding to oust them from possession as tenants holding over, set up a title adverse to the plaintiff until they had surrendered possession to him. Grizzard v. Roberts, *474supra. While the proceeding was properly brought against George H. Fletcher and Christmas for the possession, we think that Christmas is not liable to the plaintiff for double rent, and that the judgment for rent should have been entered against George H. Fletcher alone. Direction is given that the judgment be so amended as to be a judgment for possession against both of the defendants,'and a judgment for the double rent against the defendant Fletcher only. There was no error requiring a reversal.

Judgment affirmed, with direction.

All the Justices concur, except Simmons, O. J., absent.