31 Ga. App. 102 | Ga. Ct. App. | 1923
1. A tenant cannot dispute his landlord’s title or attorn to another claimant while in possession. He cannot change the character of his holding without the consent of his landlord, even after the expiration of the original rent period, until he surrenders the premises. This is true notwithstanding the person putting the tenant in possession may not have owned the land. Civil Code (1910), § 3698; Morgan v. Morgan, 65 Ga. 493 (3); Grizzle v. Gaddis, 75 Ga. 350 (3); Grizzard v. Roberts, 110 Ga. 41 (2) (35 S. E. 291); Johnson v. Thrower, 117 Ga. 1007 (3) (44 S. E. 846); Hodges v. Waters, 124 Ga. 229 (52 S. E. 161, 1 L. R. A. (N. S.) 1181, 110 Am. St. Rep. 166, 4 Ann. Cas. 106); Watters v. Hertz, 135 Ga. 804 (4) (70 S. E. 338); Bullard v. Hudson, 125 Ga. 393 (1) (54 S. E. 132).
2. An adjudication of the same subject-matter in issue in a former suit between the same parties by a court of competent jurisdiction is an estoppel against further litigation by either party of the questions so adjudicated. Civil Code (1910), §§ 4335, 4336.
3. The plaintiff Q. and another conveyed lands to Y. prior to June in the year 1913, Q., by parol, reserving the privilege of using, during the ginning season which commenced in that year, a certain ginhouse situated on the premises, without the payment of any rent. He so used the house during the seasons of 1913 and 1914. In 1915 he sold the machinery in the building to 3ST., and delivered the possession of the machinery and the building. N. was not required to pay rent to any one for the ginning season of 1915. In 1917 a distress warrant was issued against H. at the instance of Q. for the recovery of rent for 1916. A counter-affidavit was interposed by N. On the trial he denied liability, on the ground that he was the tenant of V., from whom, he
(а) There was no error in allowing the amendment to the plaintiff’s affidavit, setting up matter in the nature of a former adjudication or estoppel. See Hill v. Cox, 151 Ga. 599 (2) (107 S. E. 850). That an amendment of this character, even to an answer, is not made at the first term, nor until the trial term, would be no reason for disallowing it. Whatever may appear in Merritt v. Bagwell, 70 Ga. 578 (3 a), to be in conflict with this statement is shown to be obiter, in Hill v. Cox, supra, which supersedes also Harrison v. Joiner, 24 Ga. App. 578 (2) (101 S. E. 763). Furthermore, without being pleaded, the proceedings referred to would have been admissible when offered by the plaintiff, in support of his allegation of the tenant relation.
(б) Regardless of the true relation originally existing between the parties, the former adjudication conclusively established that in 1916 the relation of landlord and tenant existed between them (compare Kennedy v. McCarthy, 73 Ga. 346), and no surrender of the premises being made by N. at any time, that relation continued, and N. could not at-torn to V., the latter having purchased prior to the entry of N. under Q. See Raines v. Hindman, 136 Ga. 450 (1) (71 S. E. 738, 38 L. R. A. (N. S.) 863, Ann. Cas. 1912C, 347); Stanley v. Stembridge, 140 Ga. 750 (3) (79 S. E. 842); Cohen v. Broughton, 54 Ga. 297 (2). There was no issue, therefore, to be determined, except the amount of the rent.
4. Where one enters into possession of the premises of another under the relation of a tenant, and no amount of compensation is agreed upon, the law will imply an undertaking to pay such as will be fair and reasonable, which may be collected by distress warrant sued out by the landlord on an affidavit setting forth and claiming a specific amount as
5. It follows from the foregoing that the court did not err in overruling the motion for a new trial.
Judgment affirmed.