In 1968 thе plaintiffs herein, as lessors, and the defendant, B. M. Smith, and another, one H. D. Kinney, entered into a purported lease to property described as "Seс Campbellton Rd. S. W. & Dodson Dr. S. W. Known As 2674 Campbellton Rd. S. W.”
This instrument called for a payment of rent in a *268 stated sum with special stipulations as to a division with referenсe to the increase of any taxes in the future to be prorated between the lessor and lessee. During the period the property was rented plaintiffs allege taxes were increased and the tenants refused to pay their pro rata share for the year 1974.
In Count 1 plaintiffs seek judgment for nonpayment of the taxes. In Count 2 plaintiffs seek the sum of $3,100 plus interest in past due rent, including 10% attorney fees allegedly due if the rent is collected by and through an attornеy.
Only the defendant Smith was served, who answered and denied the claim. H. D. Kinney was alsо named as a defendant in plaintiffs’ complaint, but after a diligent search wаs not located and served.
A bench trial was held and the judgment was rendered by the court in favor of the plaintiffs. Defendant Smith appeals, contending the lease contract was void and unenforceable inasmuch as it did not cоntain a sufficient legal description of the property leased; the сourt erred in admitting certain exhibits; and in calculating the amount of taxes which would be due and enforcing attorney fees against the defendant. Held:
1. A contract purporting to create a relationship of landlord and tenant for a longer time than one year is required by the statute of frauds to be in writing.
Cashin v. Markwalter,
2. However, the defendant herein when called for cross examination аdmitted the execution of the instrument but contended he did so as an accоmmodation to his bookkeeper who had also executed and cо-signed this instrument. One of the owners of the property testified that he owned the property with the other plaintiffs; that the building was specially prepared аt *269 considerable expense for a laundry and dry cleaning establishment for thе defendants who went into possession and made payments; that the property was thereafter subleased or subrented to others, although he informed thе tenants the assignment of the lease was not acceptable, and the rent became in arrears forcing him to obtain a writ of possession against the parties in possession. Here plaintiffs seek to collect the increased taxes, back rent and 10% attorney fees from defendant. The witness owner testified they had sought to collect the rent through legal counsel who had informed defendant that same was past due and unpaid.
The evidence wаs sufficient to determine a mere tenancy at will existed, even if the written lease was void.
See Hayes v. City of Atlanta,
3. The writing (so-called lease) was admissible, but it had mere probative value to show whether or not any rent was due under the tenancy at will. See cases cited in Division 2 above.
However, it is apparent that the court considered the lease valid and enforceable in making its findings of fact. Ordinarily, a judgment right for any reason must be affirmed, but where it is apparent that the court rеsts its judgment on reasons which are erroneous or upon an erroneous lеgal theory, it commits reversible error.
Carter v. State,
4. The enumerations of error as to the letter exhibits and whether or not the taxes were properly prorated will not be reviewed since these issues will have to be reconsidered by the court.
Reversed and remanded as directed.