36 S.E.2d 158 | Ga. Ct. App. | 1945
1. A tenant under an oral lease for a term of years, made subject to the right of the landlord to sell the premises at any time, and terminate the tenancy on January 1 thereafter, was a tenant at sufferance after January 1, 1944, of one who purchased the property on December 16, 1943, without notice of the lease, where the tenant was notified promptly of the sale.
2. Where a demand for possession of the premises was alleged by the plaintiff in a dispossessory-warrant proceeding, and is not denied by the defendant in the counter-affidavit, no issue as to demand is made and proof thereof is not necessary.
3. Evidence by the defendant in a dispossessory-warrant proceeding brought by a vendee of the first landlord, that he had been denied the right to purchase the land under an oral option given him by the first landlord, presented no valid defense, and should have been excluded on timely motion.
The defendant Sutton arrested the proceedings by filing a counter-affidavit, claiming the right to possession under an alleged lease for ten years beginning January 1, 1941, for which he had executed ten notes of one hundred dollars each, and under which he had the right to possession until January 1, 1950. The counter-affidavit also stated that no rent was due under the alleged lease; that Sutton's term of rent had not expired; that he was not holding over and beyond his term of lease, and that Sutton had sublet a portion of the land to the defendant Pearson for the year 1944. The alleged demand for possession was not denied by the defendants. Upon these issues the parties went to trial before a jury.
The plaintiff introduced his warranty deed and uncontradicted evidence that at the time he purchased the land he had no notice of the lease held by Sutton. The evidence further indicated that the alleged lease was in parol, that at the date of the sale of the land to Minor no one was in actual possession of the land, and that there was nothing which would have put Minor upon notice of the outstanding lease on the property. It appears from the evidence that Everett had managed the property in question, in which he had a half interest, for himself and the other grantors for a number of years, and had verbally authorized one Shepard, a real-estate agent, to rent the property with the understanding that it was for sale, and that any tenant whom Shepard secured would have to deliver possession of the premises on January 1 following the sale of the property, and that Sutton was notified by Shepard of the sale to Minor within two or three days thereafter. The defendant Sutton testified that under the rental agreement he had with Shepard he had been given the option to buy the land at the price at which any prospective purchaser offered to buy, but that he had never been given the refusal at the price at which the plaintiff purchased. Upon the conclusion of the testimony the court directed a verdict for the defendant in the following language: "I am going to direct a verdict for the *255 defendant on the ground that the demand wasn't made, and on the ground that Sutton was never offered the refusal to buy at $3000. That may be right or wrong, but the Supreme Court will have to correct it."
1. This case must be determined by the nature of the tenancy of Sutton and Pearson, that is, whether they were tenants at will or tenants at sufferance, after Minor became the owner of the property. If they were tenants at will, they were entitled to two-months' notice from the landlord to terminate their tenancy. Code, § 61-105. If they were tenants at sufferance they were not entitled to notice to quit. Willis v. Harrell,
2. In a proceeding under the Code, § 61-301, against tenants alleged to be holding possession of lands or tenements over and beyond the term for which the same were rented or leased to them, brought by one who purchased the lands from the first landlord, a demand upon such tenants to deliver the possession is a condition precedent to the right of the landlord to summarily dispossess the tenants. Levens v. Arp,
3. In a proceeding by dispossessory warrant, under the Code, § 61-301, brought by a purchaser of land from the original landlord, a contention by the tenants, that the plaintiff's vendor had violated an oral option given them to purchase the land before selling it to any other purchaser, did not present a valid defense, and evidence tending to show such a contract should have been excluded on the timely motion of the plaintiff. "Any contract for sale of lands, or any interest in, or concerning them," must be in writing. Code, § 20-401 (4). It follows that it was error to direct the verdict for the defendants on the ground that they were not given the opportunity to buy the land under the oral option. *257
4. The court erred in directing a verdict for the defendants, and in denying the plaintiff's motion for a new trial.
Judgment reversed. Sutton, P. J., and Felton, J., concur.