53 Ga. App. 772 | Ga. Ct. App. | 1936
On December 4, 1934, George Ray, Boyce Ray, Vernon Ray, Stewart Ray, and Mrs. Annie Mae Bolding made affidavit for the purpose of having issued a dispossessory warrant against the defendant, Motor Aid Inc., which they alleged was in possession of certain property owned by them as tenants in common and was holding over and beyond the term for which the same was rented. The defendant filed a counter-affidavit setting up that on October 17, 1929, J. W. Ray, as agent for the above-named plaintiffs, entered into a lease contract with James H. Reeve, whereby they leased to him the property in question, for a term of five years; that this lease was to expire November 30, 1934; that on March 1, 1930, this lease agreement was transferred and assigned by J. II. Reeve to Motor Aid Inc.; that on December 17, 1928, the above co-owners of the property gave to the Calhoun National Bank a security deed to the above property, to secure a note for $2500; that on May 3, 1930, one of the cotenants, Mrs. R. B. (Annie Mae) Bolding paid this note, and the bank transferred to her the note and the security deed; that until May 3, 1930, Motor Aid Inc. paid the amount of the rent, $50, each month to the Calhoun National Bank, and after that date up through November, 1934, the rent was paid to Mrs. Bolding; that in February, 1934, Mrs. Bolding, as agent for the above-named cotenants executed to the defendant a contract under seal of lease of the same property for another term of five years commencing January 1, 1935, and made a further oral leáse-con
There can be no doubt that the lease executed in February, 1934, by Mrs. Bolding to the defendant was not binding on the other non-consenting tenants in common. This is true for two reasons, each of which is sufficient within itself. First, a tenant in common has no power to lease the common property, without the consent of the remaining cotenants, and such a lease is not binding as to those cotenants not assenting thereto. 7 R. C. L. 876, § 71; Roberts v. Burnett, 164 Ga. 64 (137 S. E. 773); Charleston & Western Carolina Ry. Co. v. Fleming, 118 Ga. 699 (45 S. E. 664); Bova v. Clemente, 278 Mass. 585 (180 N. E. 611); Wright v. Kaynor, 150 Mich. 7 (113 N. W. 779). We have already pointed out that the evidence disclosed, without contradiction, that none of the other tenants in common had authorized Mrs. Bolding to act for them in leasing the property. Second, it appears that the lease in question was executed under seal, and there' was no showing that Mrs. Bolding’s authority to execute such instrument as agent for the remaining tenants in common was founded on an instrument executed under seal. See Featherston v. Reese, 36 Ga. App. 379 (136 S. E. 811), and cit. We are unable to agree with the contention of the defendant that because Mrs. Bolding paid and had transferred to herself the security deed jointly executed by her and the other tenants in common to the Calhoun National Bank, and for a period of years collected the rent under the original lease, she as a matter of law had the power and authority to lease the property without the consent of the other tenants in common. Although we have not carefully examined the authorities on this phase of the case, we are doubtful whether the defendant has the right in this proceeding to
However, while we are forced to differ with counsel for defendant on this question, yet we are in agreement that the judge erred in directing the verdict for the plaintiffs. While it is true, as we have already stated, that the lease was not binding as to her cotenants, yet on the other hand there is no valid reason why it is not binding on her as to her interest in the property. Zeigler v. Brenneman, 237 Ill. 15 (86 N. E. 597); Roberts v. Burnett, supra. A tenancy in common is characterized by unity of possession by persons holding several and distinct estates. Hood v. Johnston, 210 Ala. 617 (99 So. 75); Firemen’s Ins. Co. v. Larey, 125 Ark. 93 (188 S. W. 7, L. R. A. 1917A, 29, Ann. Cas, 1917B, 1225). A tenant in common is considered seized solely and severally of his share, and may dispose of it at his pleasure and without the knowledge or consent of his remaining tenants in common; and it may be said to be settled law that where one per
From what we have said, we think the judge erred in directing the verdict in favor of the plaintiffs, and that the evidence demanded a finding for the defendant. This ruling makes it unnecessary to consider the cross-bill of exceptions.
Judgment reversed. Gross-bill dismdssed.