123 Ga. 794 | Ga. | 1905
On the second day of January, 190.2, Betsey A. Mathews sued out a warrant to dispossess Daniel L. Mathews as a tenant at sufferance. He filed a counter-affidavit in which he denied that he was a tenant at sufferance or otherwise. On March 9, 1903, Betsey A. Mathews died, and on April 26 of the following year W. H. Sharpe, who had been duly appointed administrator upon her estate, was made a party plaintiff in her stead. On the trial of the case the plaintiff introduced the following documentary evidence: A deed from Neil A. Mathews and others to William C. Mathews, dated June 30, 1896, conveying to him the premises in question, and a transfer of this deed by William C. Mathews to Betsey A. Mathews, bearing the same date; also, a paper executed by Betsey A. Mathews, of
1. The correctness of the ruling made by the trial judge upon the motion for a nonsuit depends in a large measure upon the construction to be put upon the instrument executed by Betsey A. Mathews and delivered to Daniel L. Mathews. The plaintiff in error insists that the paper is testamentary in its character, and that it is void because attested by only two witnesses. On the other hand, the defendant in error insists that the paper is a deed. In all essential respects it is similar to the instrument construed in Griffith v. Douglas, 120 Ga. 582, in which ease it was held that where a paper is in the form of a warranty deed, and is attested as a deed and delivered to the party named as grantee, it should be treated, not as a will, but as a deed, notwithstanding it contains words to the effect that the enjoyment of the estate thereby conveyed is to be postponed until the death of the grantor. The paper now under consideration was executed in the form of a deed, was delivered to the grantee, and was produced
2. Did the evidence show that the defendant was a tenant at sufferance? His contention was that the deed conveyed the title to him and gave him an immediate right to the enjoyment of the premises. He evidently construed the reservation of a life-estate as amounting to no more than a charge upon the land for the support of his mother, the grantor, during her natural life. This was an erroneous construction of the deed, but it illustrates the' nature and character of the defendant’s possession. He testified that he entered into possession of the land, claiming it as owner under the deed from his mother. He did not hold under her as her tenant, nor recognize that she had any interest in the premises. The relation of landlord and tenant did not, therefore, exist, and the summary proceeding authorized by the Civil Code, §4813, was not available. Watson v. Toliver, 103 Ga. 123. “To create the relation of landlord and tenant between parties, a formal letting is not required. The relation may arise by implication, and, as a general' rule, it is sufficient to create the relation if it appears to have been the intention of one to enter or occupy the premises in subordination to the title of the other. But the relation will never be implied when the acts and conduct of the parties are inconsistent with its existence. . . A tenant is generally defined as one who occupies the lands or premises of another in subordination to that other’s title, and with hia
Judgment affirmed.