121 Ga. 679 | Ga. | 1905
Lead Opinion
It is now to be determined when waste will work a forfeiture The code does not use the language of the statute of Gloucester, and limit the forfeiture to the thing wasted, but when a forfeiture results it is the “interest” of the tenant, which would seem to be his entire interest in the premises, without reference to what portion of the estate was the particular subject of the waste. After declaring the degree of care that the tenant shall exercise, and the acts which he is prohibited from doing, the code provides that a forfeiture results “for.the want of such care and the wilful commission of such acts,” if the remainderman elects to claim immediate possession. It is said that “and” should be here construed “ or,” and that the section should read that a forfeiture results from the want of such care or the wilful commission of such acts,, or should read, for the want of such care, as well as for the commission of such acts; thus making a forfeiture result cither from permissive or from voluntary waste. It is also contended that the word “ wilful” should be construed to mean simply intentional, and not to convey the idea of malice, evil intent, or wantonness. Forfeitures are not favored by the law. Statutes providing forfeitures, and thereby imposing upon individuals penalties greater than the payment of the actual damages which their wrongful acts have caused others to suffer, are penal in their nature, and must be construed strictly against the persons claiming the forfeitures; practically the same rule of construe
When waste of a character which will work a forfeiture has been committed, the reversioner may elect either to claim damages or to claim immediate possession. Can he claim immediate possession and also pray that, in the event his evidence does not authorize such claim, damages to the estate in reversion may be assessed ? That is, can a suit be brought in which the petition contains two counts, one alleging facts upon which a forfeiture is claimed and immediate possession prayed for, and another allege facts upon which damages are claimed? It may be that under our liberal system this would be allowed; but certainly a petition which, although not separated into two counts in accordance with the rules of good pleading, has prayers in the alternative praying for a forfeiture if forfeiture is established, and, if not, for damages,, would be maintainable unless there is a special demurrer filed at the first term, complaining of the misjoinder and of the informal way in which the two claims are pleaded together. The petition in the present case being of the character just referred to, and there being no special demurrer to the same, the plaintiffs were, entitled to have both issues submitted to the jury, and it was the duty of the. judge to submit the same even though no written request was made to that effect.
There was no error in allowing the dowress to testify as to the-
Concurrence Opinion
concurring specially. As clearly shown in the foregoing opinion by Judge Cobb, the law applicable to the forfeiture of estates as contained in the Civil Code, § 3090, is peculiar to this State. It differs from that at common law, and from the ancient English statutes. On this branch of the case, therefore, the decision can not be controlled by a consideration of general authorities. The principle announced is far-reaching. It covers any life-estate created by deed or will, and is not limited in its application to dower, the favorite of the law. While I concur in the judgment and in the ruling as to the effect of the evidence, I am unable to agree to the proposition announced in the first headuote that there must be a concurrence of permissive and voluntary waste before a forfeiture can result. The practical effect of that construction will be that in hardly any instance could a forfeiture result, no matter how great the waste or how serious the consequences to the remainderman. For rare indeed will be the case where the damage results from the operation both of action and inaction. at the same time. Taking, for example, the case of a city lot with a house thereon, I understand the ruling to involve the proposition that if the life-tenant should permit the building to rot to the ground, no forfeiture could be declared, because while the waste was permissive it was not at the same time voluntary. On the other hand, if the life-tenant should willfully tear down the house, a forfeiture could not result, because,
This view is sustained by the recognition, in the Civil Code, § 3090, of the existence of the two classes of waste; by the separation of the two classes in the first sentence although they are united by the word “and.” The word “and” there is clearly separative and operates as a disjunctive. It has the same effect in the last sentence, which deals with the two classes of acts out of which the forfeiture may grow. This is made specially apparent by an examination of the punctuation. “For the want of such care, and the willful commission of such acts, he forfeits his interest to the remainderman.” The use of the comma before the word “and” makes the last clause parenthetical, and fully justifies a reading that “ for the want of such care he forfeits his interest, and likewise for the willful commission of acts tending to the permanent injury of the person entitled in remainder he forfeits his interest to the remainder. The first sentence prohibits waste by permissive acts, and also by voluntary acts. The penalty is adjusted to this double prohibition. It makes a forfeiture result from the want of such care, and als'o result from the willful commission of voluntary acts amounting to waste. Of course, forfeiture will never result from slight acts of waste. This is clearly involved in the language of the section. The penalty is imposed for such serious acts as tend to the permanent injury of the person in remainder, or to that class of negligence which fails to preserve and protect the corpus. But when by action or inaction the character, quality, or value of the property is being destroyed, the wrong-doer must suffer the penalty of a forfeiture. Nor can he complain, for it is brought about by his own disregard of the rights of the one who is to come after. Nor will it do to say that the remainderman has a remedy by injunction to stay waste, or for damages for waste already committed. The remain- ' derman is frequently so far removed as not to know what is being done with the property. Injunction could not restore what had been destroyed. Damages might not be recoverable out of an