110 Ga. 37 | Ga. | 1900
Hudson and others brought suit in a justice’s court against Stewart and two others, for the use and occupation of a certain lot on which was situated a storage warehouse; and
Our Civil Code, §3115, declares that “When the owner of real estate grants to another simply the right to possess and enjoy the use of such real estate, either for a fixed time or at the will of the grantor, and the tenant accepts the grant, the relation of landlord and tenant exists between them.” This rule of law undoubtedly fixes the relation which existed between the jdaintiffs in error and Almand as that of landlord and tenant. The fact that Almand did not at any time occupy the premises can have no effect on this relation, because the owners of the property granted the use of the same for a fixed time to Almand, who accepted that grant, and he was bound for - the rent. The Civil Code, however, in the same section, declares that after such a contract the tenant has only a usufruct, which he can not convey except,by the landlord’s consent. In this case it appears that the tenant did, so far as an agreement could, convey the usufruct, which he obtained by his contract with the owners, to the defendants in error, who went into possession under this sublease; and it further very clearly appears that this sublease was not made with the consent of the landlord. Because of this possession and the fact of ownership of the property in the plaintiffs in error, it is contended that,
But it is said that the tenant could not legally sublet the premises, and that when he did so and the landlord knew of the occupation by the subtenant, this was sufficient to create this relation. Not at all. In the case of McConnell v. East Point Land Company, 100 Ga. 134, this court ruled that it was at the election of the owner to. make such subtenant his tenant, and when the owner so elects he must proceed against such subtenant as his own tenant; and in McBurney v. McIntyre, 38 Ga. 261, it was ruled that a subtenant becomes the tenant of the landlord if he elects to recognize him as such, and not the tenant of the tenant who placed him upon the premises without -the consent of the landlord. So that, in order for the relation of landlord and tenant to exist between the owner of the property and a subtenant, some affirmative action must be had by the landlord showing that he elected to treat the subtenant as his tenant. It is not sufficient that the landlord has knowledge and makes no objection. As an instance, it may readily be seen that the owner of a storehouse may be unwilling to rent the house to A. on account, say, of his insolvency, but is entirely willing to rent it to B., who is a friend or relative of A., and does so. Without having obtained the consent of the landlord, B. sublets it to A.
, This view of the question is not to be confused with the railings made by this court in a number of cases where it was held that’ the owner was entitled to make out of the crops produced on his land by a subtenant the rent agreed to be paid by the prin
Judgment affirmed.