53 Ga. App. 469 | Ga. Ct. App. | 1936
The Atlantic Life Insurance Company sought to dispossess W. T. and Mrs. W. T. Ryals, as tenants in arrears with rent, under the Code, § 61-301. The defendants filed their counter-affidavit, setting up that they had not rented the premises from the plaintiff or its agent. An amendment offered by defendants to their counter-affidavit was disallowed. The judge directed a verdict for the defendants, on the theory that it appeared that Mrs. Ryals had purchased the premises from one who had purchased the same from' the grantor in a loan deed .in favor of the plaintiff, which loan had matured and was unpaid, and the power of sale in the deed was exercised and the property was bought in by plaintiff, although in the conveyance to Mrs. Ryals, and in the conveyance under which she claimed her title, she and her predecessors had expressly assumed the loan in favor of plaintiff. The
1. Under the previous rulings of this court a verdict in plaintiff’s favor was demanded. Atlantic Life Ins. Co. v. Ryals, supra.
2. The proffered amendment was not germane to the issue of tenancy or no tenancy, and was properly stricken. Patrick v. Cobb, 122 Ga. 80 (49 S. E. 806). The title to the land was not directly involved in this ease, as was held by the Supreme Court in transferring the case to this court. Ryals v. Atlantic Life Ins. Co., 181 Ga. 541 (182 S. E. 896). If the sale of the premises under the power of sale in the loan deed in favor of the plaintiff was void on account of its improper exercise, or because the loan was not mature, this could not be set up as a defense to a proceeding under the Code, §§ 61-301, 61-303. Crawford v. Crawford, 139 Ga. 394 (77 S. E. 557), and cit. A tenant can not dispute the title of his landlord. It was held, when this case was here before, that the relation of landlord and tenant did exist between the plaintiff and the defendants in the form of a tenancy at sufferance. This principle is applicable in a dispossessory proceeding by the grantee
3. The questions ás to payments made by defendants on the loan to plaintiff and of the shortage in the acreage, were ruled on when the case was here before. Atlantic Life Ins. Co. v. Ryals, supra.
4. The judge did not err in overruling defendants’ motion fop new trial.
Judgment affirmed.