Smith v. Turnley

44 Ga. 243 | Ga. | 1871

Lochrane, Chief Justice.

The record in this case discloses a confusion of facts out of which it has been difficult to ascertain the merits. It appears that Turnley, as administrator of B. H. Lampkin, deceased, made out two affidavits for rent against the plaintiffs in error, upon which distress-warrants issued, and were levied upon a stock of drugs. The property levied upon was claimed by Amelia Smith and J. E>. Smith, under the homestead and exemption laws, and the affidavit of J. D. Smith alleges that certain personal property was set apart by the Ordinary of Clay county, among which was one stock of merchandise consisting of drugs and medicines, amounting to $600 00. And all the property claimed was purchased with the proceeds of the property set apart. The two warrants levied were one for $250 00 for rent due by Mrs. Amelia Smith, and one for $1,250 00 for rent due by John I). Smith. The affidavits upon which these warrants are predicated fail to set out for what time or term the amounts claimed are due. It was agreed upon the trial to submit both cases together, and upon the proof the jury found for the plaintiff, and that the property was subject, when counsel for the Smiths moved for a new trial growing out of alleged errors committed by the Court.

By the evidence, it appears that Turnley and one Hamilton, on the 28th of September, 1868, entered into a written agreement, by which Hamilton bought from Turnley his stock of medicine, etc., and agreed to pay him, as administrator of Lampkin, the rent due, and falling due up to the 1st January, 1870, at $50 00 per month. When J. L>. Smith bought out Hamilton, Turnley swears that he promised to pay the rent due by Hamilton upon this contract. The purchase by Smith from Hamilton was in May, 1869, and he was to pay $1,700 00, which Smith swears included the rent due up to the expiration of Hamilton’s lease or 1st January, 1870. The testimony conflicts upon this question of liability and promise to pay the rent due by Hamilton upon the part of J. D. Smith, and the certified copy of the personalty exemption were also in evidence. We have extracted these facts out of the bill of exceptions, and proceed to dispose of the legal questions made.

1. The right of a Justice of the Peace to issue a distress-warrant for an amount beyond his ordinary civil jurisdiction, is clear and unquestionable, and when levied by the proper officer and returned to the proper Court, the warrant is legally binding upon all parties. And it was not error in the Court below to so hold in this case.

2. It was not error in the Court to admit the written evidence or agreement, though entered into between Turnley and Hamilton. It was a lease for the premises in dispute, covering a part of the term they were occupied by Smith. Though res inter alios, yet, when Smith came into possession as a sub-tenant, it was some evidence to show the amount of rent due by the tenant, and was the foundation' for laying the ground of liability against Smith for his occupancy, so far as that fact was involved in the issue. Again, the subtenant is the tenant of the landlord for the time he actually occupies the premises; the relation of landlord and tenant exists and may arise out of sub-letting the premises for the time the landlord permits the sub-tenant to remain. But the agreement by the sub-tenant to pay rent due before he entered upon the premises, does not constitute a debt for rent as against him that will authorize a distress to levy and summarily enforce the collection by the landlord. This is practically an important question, and in the case of Scruggs vs. Gibson et al., 40 Georgia, 519, this Court has laid down the principle, that to authorize a levy by distress-warrant for rent, “ the relation of landlord and tenant must have existed during the period for which the rent is claimed.” How far the agreement of A with B, to pay the rent due by B at the time of the agreement, may be enforced as a debt for rent due, by the landlord, by distress upon the property of A, is a question I have been unable to meet decided either way by our Courts, and I follow only the justice and judgment I entertain of the provisions of our Code upon the subject. In other States I find the principle recognized that the assignees of a lease or sub-tenant are liable upon their possession, and not for back rents due to the landlord. And distress-warrants, in the case at bar, we hold, could not be issued and levied for rent due by Hamilton upon the proof of a promise to pay by Smith, his sub-tenant, such rent to him.

3. In the matter of error alleged in relation to the charge of the Court upon the subject of “ exemption ” we think the Court charged the law correctly. To assert the protection of the law in cases of personalty exemption, there must be a distinct identification of the property exempt. To exempt a stock of drugs and then mix such articles with others of a like kind, and, in the confusion, lose all identity of the articles exempt, is not the intention of the law. It would be manifestly unjust to so hold, and such property is liable to levy and sale. And the articles ■ exempted must be specifically claimed and identified to invoke the protection of exemption by the Ordinary.

4. Upon the whole evidence and facts in this case, we find that the parties, plaintiffs in error, occupied the premises from the 28th May, 1869, until the 29th March, 1870, which at the price, $50 00 per month, amounts to $500 00, of which time Mr. Smith occupied some five months, or $250 00, and we direct that the plaintiff write off from the verdict in this case, the amount in excess of the sum due for the rent during the actual occupancy of the parties, or in default, that a new trial be granted.