17 S.E.2d 303 | Ga. Ct. App. | 1941
Where a landlord enters into a valid agreement with a tenant by the terms of which the landlord agrees to accept symbolical delivery of the premises on the last day of the term, the vacation of the premises on the date stipulated is a complete surrender of the premises, and a tenant who thereafter moves back on the premises under a claim of title is not the tenant of his former landlord and is not estopped to dispute his title to the premises.
Thereafter, in January, 1941, dispossessory proceedings were again instituted. The defendant filed his counter-affidavit and bond, and the case made thereby came on for trial. Mr. Fenn testified concerning the making of the rent contract, and that the rent had been paid through December 31, 1940, but that no rent had been paid since that time and the premises had not been delivered upon demand. He also testified that he understood subsequently that Lasseter did move out of the premises but that he did not know it until Lasseter had moved back in. Lasseter testified that he did vacate the premises at midnight on December 31, 1940, and moved all of his possessions therefrom except one pair of platform scales, but that he did not deliver the keys to the premises to the Fenns. The contract set out above was introduced in evidence by the Fenns. The defendant then sought to introduce in evidence deeds and other documents whereby he had allegedly acquired the title to the premises *175 in dispute by means of a tax deed from the county authorities. This evidence consisted of a tax fi. fa., issued in 1935, with levy on the property in dispute as the property of the Growers Finance Corporation, made in 1936; deed dated in 1937, from the sheriff of Wilcox County to Wilcox County, reciting that the county was the highest bidder at the sale and conveying the land in dispute; deed from Wilcox County to Kenneth M. Lasseter, dated September 9, 1940, conveying the land in dispute, signed by the county commissioners of Wilcox County, and the resolution of the county commissioners empowering and instructing the members of the board to make the deed to Lasseter. All these documents offered by the defendant showed that they had been recorded in the proper places in Wilcox County. This evidence was excluded by the court, and a verdict was directed for the plaintiff for the property sued for and for $40 rent, which was double rent. The defendant filed a motion for new trial which was overruled, and he excepted.
The tenant may not dispute his landlord's title or attorn to another claimant while in possession. Code § 61-107. And the surrender of possession must be actual, distinct, and bona fide in order to place the tenant in a position to dispute the landlord's title. 32 Am. Jur. 130, § 126. However, there appears no reason why a landlord can not by contract, based on a valid consideration, agree to accept the surrender of premises without actual notice of its vacation by the tenant and the surrender of the keys to buildings, if any. In this case the effect of the agreement was that the landlord relinquished his right to actual notice of the vacation of the premises, and the right to have the keys surrendered to him. Under the circumstances, when the tenant actually vacated the premises at the end of the term the relationship of landlord and tenant came to an end, and when the tenant re-entered the premises he did so under color of claim of title and not as tenant, and he was therefore not estopped under the circumstances from disputing the title of the former landlord. The court erred in excluding the evidence of title, and in overruling the motion for new trial.
Judgment reversed. Stephens, P. J., and Sutton, J., concur. *176