State v. Davison

27 to cut and stack county the exclusive and saw said timber authority same on the within leave same stacked on the premises premises the territorial limits of the where timber respective counties had been produced. manner, this all so stacked on timber premises cut, sawed, in each held, was as county prop owned erty in each belonging petitioner January on respective county 1, 1943.” It thus- used a number appears plaintiff sawmills in on tracts, the timber them saAving various placing temporarily this one purpose, aught every appears, thing the nature aof business been had moved on or enterprise before 1, January 1943. In Joiner 438 v. Ga. Pennington, (85 S. E. 318), it was held “a sawmill is portable subject not taxation in a where is county it located the land temporarily on another, owner the sawmill in a county different living and returning the same for taxation as personal property together with other property of his residence.” Personal county resides, taxed in the ordinarily county where owner order for it to acquire situs for taxation in some other county, 92-6208, under the supra, it must be connected with some business that is situated more enterprise or less perma nently a different as distinguished from an county, enterprise whose location not merely O’Neal v. transitory temporary. Whitley, 177 Ga. 491 E. (170 376); S. Lewis & Holmes Motor Atlanta, Freight 195 Ga. Corp. 2d, S. (2) E. (25 699). did petition not sufficient facts allege to show that any of the lumber should be taxed elsewhere than in Cobb County; since none of was shown claimed, from taxation exempt did state a relief, cause of action for petition court erred in overruling demurrer of the general defendants. All

Judgment reversed. the Justices concur. DAVISON, et al. v. tax OF GEORGIA collector. STATE July No. 14869. 1944. Head, Allison,

T. and Marshall L. as- Grady attorney-general, sistant error. attorney-general, plaintiffs Cobb, contra. Carlisle Justice. In addition to the general grounds,

Grice, contains six both special grounds. questions presented, record be thus stated: Did 1. special grounds, may the general have System Georgia authority of the Regents University ? instrument under consideration 2. Does the instru execute the effect under consideration have the of creating vesting ment Nu lessee, Home Asso Sigma Fraternity an estate for years ? ciation , “There is constituted a provides: hereby The law of Georgia State Government of as the of the known Georgia, department The name University System Georgia.’ ‘Board of Regents heretofore established and under the corporation existing ‘Trustees of the University Georgia,’ hereby name and style, System University Georgia.’” changed ‘Regents is the legal “The State holds title to 32-101. and/or The several institutions the Board operated by of: owner beneficial all real and System, of the University including Regents to the several institutions or used in belonging personal therewith, and all other to said Board property conveyed connection said institutions or for educational of of any purposes, the use the boards of trustees of which the Board of of any conveyed or successor, or to of the institutions under its is the Regents under 91-104. “The created section corporation control.” § the 32-101, University System known as of of Geor- ‘Regents and State, of to be governmental agency declared hereby gia,’ under this corporation held title is all property State of the all subject to be the property declared hereby other restrictions of the imposed upon property limitations State of the Constitution Georgia by and laws of this The State. members of the Board of of the Regents of University System are declared to be officers of the State of Georgia hereby public in all their actions limita- Georgia subject, such, to all the tions and this restrictions the Constitution and laws of imposed by other Code 1935, State officers'.” Ga. L. 171. Ga. public p. Ann., “Tuition, 32-138. matriculation fees and of proceeds § sale of reported secretary- shall be and remitted to the personalty treasurer same of the- Board of who shall transmit Regents, Treasurer, as a the State and the same are hereby appropriated to the branch or division of the Univer- continuing appropriation from which to be drawn out of sity System they originate, as other are drawn. The treasury upon requisition just funds rentals, mess-hall dormitory from proceeds charges, proceeds contests, similar athletic and other revenue shall remain with same, and shall institutions not be into the originating paid however, under All this section. such shall be treasury receipts, to the of the Board of secretary-treasurer Regents reported Auditor and Shall be audited State his shall reports be Governor, to the General Assembly, available and to the and all such revenue is declared to be Regents; Board uhder the Board of which control Regents, the control of be exercised may such athletic associations or or through organizations as directly Id., 32-140. “All authorize.” properties owned or may § University System the Regents Georgia pursuant held by 32-139 in section are title, which declared to be this the public sold, State, leased, be otherwise disposed property subject to the Regents approval Governor, the said of by sale, deem such Regents may lease, Board of or other whenever interests the best University System: provided, disposition shall first determine that Board of such Regents used advantageously University longer System.” no can Ann., Code 32-141. 168. Ga. p. L. Ga. Blanton, University System 49 Ga. Regents App. said: “The it was State is E. 673), only S. corporate

602 (176 citizens within certain territorial all limits. The name as a have a public corporation, acting to enter people, whole . . make purchases. legislature may contracts into to make a contract to certain authority officers this delegate

37 public board or department of tbe State government; and the ac- tion of such delegated authority the matter of a con- making tract is action of the State. . . The Board of Regents the University System of is not a mere Georgia private corpora- tion, but is an instrument of State for one func- performing tions of the government of the State wit, that of the Georgia, education of its people.” We conclude from what has been said that the Regents had University System to enter authority into the kind of contract consideration, now under as there long is no abuse of discretion, and there here appears no abuse dis- cretion.

The important is, for question decision did the instrument under consideration have the effect of merely creating relation of landlord and tenant between the or did it parties, vest an estate for in the lessee? years “When the.owner of real estate grants to another simply right possess the use enjoy of such real estate, .. the relation of landlord and tenant exists between them. In such case no estate landlord, orrt of the passes and the tenant has usufruct, . '. which only is not subject and sale.” levy Code, 61-101. The term “usufruct” signifies to use § another, enjoy it be provided done im without pairing substance of the altering thing. Mulford v. Le Franc, 88, 102; 26 Cal. Heintzen v. 19 Binninger, Cal. 5 Pac. (21 v. 18 Tex. 377); Cartwright Cartwright, 628; Modern Music Co., Concordia Fire Ins. 131 305 Shop v. Misc. N. Y. (226 Sup. Gerhardt, Schwartz v. Pac. 630); Oregon (15 698), citing An Law estate Dictionary. Bouvier’s defined our 85-801, “An as follows: estate for one which is duration limited in its to a fixed period or which be made If lands, and certain. it is in fixed passes as realty. It may number of years, provided be for limitation is within the perpetuities.” rule against found, far as has been there are but

So few adjudications "ofthis throw any light upon disputed court issue before us. 110 Ga. 317 Hyatt, S. E. (35 211), Collier it was held that the involved did there not its terms contract create an estate for under it S became but the tenant of C. years, That con “that S has rented and leased recited from tract 0 a building sum at a to be designated paid five years monthly installments, and if at C’s lease to terminate promptly paid option; shall fire, C the lease building should the agrees, destroyed by cease; his own expense that S shall have to make at permission desire, he does such in provided alterations the as he building in building the same; keep not weaken or the that S shall damage the ex- at up at own and deliver repair expense, his thorough was as when it of the lease in as order and piration good repair desire if C should received, usual wear and tear and that excepted; on the premises erect a new one to tear down building notice, lease, sixty days at time S shall vacate any during upon such and basement of. S to have the right occupy ground to floor be agreed upon.” when a rental then to new at building completed, if to, that noted, case referred It to be just is important one on and erect new building should desire to tear down C 60 time, days’ at S was vacate required to premises of said portion S have notice, occupy and that should to be then agreed at a rental completed, if when building Brice, E. the con 338), S. (107 In Johnson v. 151 Ga. upon. certain described Brice leased to Hardison tract recited that merely Notes were year. at one hundred dollars per land for Hut- in reciting that were rent land they each “for given year, each was District, across written: County, land Bibb Georgia,” fire, untenable by In case the are rendered premises “Bent note. was fire.” of each note body from date of rent to cease alterations, change, “It that no the following: agreed printed written shall be made tenant without the consent or repairs that Hardison obtained a mere landlord.” The court held reached the case of A similar result was in usufruct. Griffith Smith, those S. E. Whether decisions be 155 Ga. 717 (118 194). not, or neither with earlier full-bench decisions con in conflict here with did create to hold that the contract dealt us strains instruments in two are in those cases years. an estate here different from one involved. The far respects material no for the un furnish contention support there made rulings landlord the 'relation of and tenant only us the record before der are on They pertinent the question between parties. existed of real estate for term five or every leasing renting whether is a separate an estate for That matter years. more creates later. be referred to will which Orr,

In Atkinson v. 83 Ga. 34 S. E. (9 787), it was ruled that where one enters into and at possession, his own expense erects on the lots buildings city of another under a contract that he parol is to do so is to a certain annual pay rent ground each and every year, that he is retain as he possession long as pays, but on failure to the owner is to take pay, possession premises, as including his buildings, absolutely, where this is done contemplation reducing contract is not lifetime writing, accomplished owner, but after death, executor, his his with the assent and approbation of all interested, does, in persons connection with the other party, reduce it seal, under writing, latter stipulating writing rent pay agreed for each and in default, every year, after notice, ninety to surrender the days’ and the premises buildings thereon, or be considered over, tenant holding and the former latter, that the his stipulating heirs and shall assigns, retain pos as tenant etc., session as the rents are long paid, the contract does not create a tenancy year from to but is year, prima facie lease on condition of perpetual prompt payment rent ground the written annually, terms, contract its own being, by an em only bodiment of the contract. The previous parol same instrument Atkinson, there involved was before this in again court Penick v. 284, 139 649 Ga. S. E. 46 L. R. A. (77 (N. S.) Ann. Cas. 1914B, the as to the nature 842), question being of the estate or lessee, thereunder and, interest after passing that in saying it the first case was demonstrated that the clearly parties meant more than the of a creation the something tenancy by year, or from it was held the instrument year, to created a year base or fee, wit, fee, an estate determinable to in defeasible upon non with the conditions named therein. In compliance James Wil G. Co., Co. v. son Manufacturing Chamberlain-Johnson-DuBose E. Ga. S. the was as follows: “In (79 465), ruling 1910 a leased from the owners thereof private corporation certain lots city of twenty-one a term years, agreeing for to pay specified annual and, rentals, taxes, after the first all year, assessments, insurance for expenses repairs, further premiums, agreeing tear to the down the then on building premises to erect in its stead a in' accordance with certain building plans specifications, with thereto, the to add or right improvements to replace with a or to cost not less than the building buildings replaced, one to to equally adaptable general stipulating business also purposes; the their or insured to three-fourths of keep' building buildings in- same value and for the lessor’s and should the be protection, term, fire to have jured or other destroyed casualty, during lease, to and, at repaired replaced, expiration them lessors, building premises good deliver condition to to their the lessee premises having then on become property; conducted ‘the business to be to sublet the premises, provided, right Held, an character.’ therein not of objectionable and that had an for in the leased premises, lessee estate years such against lien could attach to and be enforced materialman’s interest, to the conditions of the lease.” subject to, contained the case last referred certain covenants were them, lease, lessee, on the among certain burdens placing then on the and the erection down the building premises tearing certain and specifica- of another under building plans in its stead buildings also a insured keep There was stipulation tions. cer- were for the lessors’ and there protection, for a certain amount The right the premises. tain named restrictions on sublet “An estate for carries with declaring §'85-803, estate,” as a can use in as absolute manner greater it the right construed to would be ordinarily mean that a contract a mere usufruct because is reduced to years, create an estate The merely are its use. clause put upon quoted limitations certain under an in- grantee an interest as passed that such means carries with it the an estate strument creating as the estate. greater manner holder use it in same limited, in encumbered or somewhat may be passing interest case, the character o£ the necessarily changing without instant the estate. 85-802, down a rale which to lays distinguish

The and the relation of landlord and ten- years an for estate between differs, “An estate for when ap- declares: That section ant. in hiring, from a contract of the latter to personalty, that, plied interest to bailee property no conveying a bailment .is use; to it differs realty when from the applied mere of right but in in latter that the tenant landlord and tenant of relation mere of use similar to of estate, very right right but no has hirer of personalty.” present instrument to the gives Asso- more than “a mere ciation of use similar right very the right to of a hirer of personalty.” ,;..r to in noted,

It is be place, first that this contract mav ruo he it ninety-nine years. Begardless whether true that a lease for than an more five creates is, rotate lor it years, we at least somewhat unusual an apprehend, for owner to agree with another that shall the latter have to the use and riaht occupancy for premises length time under the land- relationship of lord and tenant. Secondly, may observed that price right to be one dollar oniy per year, which is another fact unusual, a little the amount of land here considering involved and location, its and itself more of a suggests gift grant than a mere rental a landlord It to tenant. has some significance lessor, erect, also that lessee to agrees the erec- requires of, a on the $20,000 tion to cost not than building premises less $35,000, nor than which is more to become the of the les- sor of the lease. It expiration may also be noted that (cid:127) 4 of the “lease” contract provides that paragraph Association transfer, sell, and other convey any fraternity existing at the at time University any th'is “all operating during lease rights of the Association in said lot and premisesand paragraph than that, stated,” “other hereinbefore provides the Association lease, sell, shall have no right convey same premises. are other There certain indicia in ownership the fraternity provisions One that: “The corporation. Association may transfer, sell, other convey any fraternity existing at the University of at Georgia any time operating this during of the Association said lot rights lease all and premises.” An- stated, that: than hereinbefore “Other other is Association shall sell, lease, or convey said right premises.” have no Why pro- lessee had the sell, event the lease, vide that or con- if a mere usufruct passed said premises, to it? vey The loan the parties, between the fact reciting agreement lease, con- throw on least clauses that light at two real tains character of we are called on to construe. the instrument These are as the repayment “As for security loan, follows: the As- transfers and to the conveys hereby sociation all Begents of its title, interest said lease to the real right, estate thereon, improvements leased thereunder to the subject of de the use of the said the event premises by fraternity. in fault in the of three consecutive by Association payment due, sell Regents may stallments loan as and when upon leased title, and interest of the Association the said the right, thereon, at sale the house and other improvements public premises, door of Clarke bidder, the courthouse highest for cash before the same for four consecutive after County, Georgia, advertising in which advertisements for said legal weeks in the newspaper bid are At such the Regents Clarke sale County published. 6 and 7 the loan agree These embrace and buy.” paragraphs themselves, a months few parties ment. It thus that appears it, own their interpretation after lease was.signed, put Geor interest, use. an not a mere See was that it conveyed which Smith, 626, 627 E. 83 Ga. S. (3) &c. Co. (10 Railroad gia v. Chambers, 93, E. S. 610). Ga. 97 (127 Turner 235); taken, clauses are was which the quoted from agreement, loan 20, itself bears date August 1941. The lease dated March lessee, recorded, by was presumably The instrument 1940. for the county. provision There no deed records of on the All these rental contract. of a mere landlord-and-tenant recording than a mere usufruct to the lessee. passed that more things suggest two contracting between the parties that agreement It true the lessee from prevent having covenants contains certain term during over the control same absolute not, mind, do have. such restrictions to our would an owner .But contract, as to reduce features of the so the other outweigh fraternity corporation from 'right acquired character usufruct, a mere of an estate a grantee and tenant. landlord The law merely relation make the a landlord and tenant certain between obliga into contract writes tenant, landlord, and others of certain places tions both. on restrictions claimed that agreeing be them- among would hardly

But it the one or the other place upon matters which certain selves on liabilities, him of certain burdens, or relieve a con- extra certain of landlord and relationship tenant creating definitely tract into else. So thereby changed was something two persons between corners, creates in to its four the fra- contract, looking here, if the an estate for ternity corporation it will not property, otherwise construed because the make merely parties certain covenants as to the use and sale thereof which the law itself would read into holder of such a not grant.

It is not ato decision of this case to necessary decide whether real every renting of estate for a of five leasing period years more creates an estate for under years 61-101. There are several statements to that effect in the eases of this court and Jones, the Court of Appeals. 816, v. 85 823 Ga. (11 Schofield Co., E.S. Anderson Kokomo Rubber 1032); 842, v. 161 846 Ga. Entelman, E.S. Harms v. 21 (132 76); Ga. 295 E. App. S. (94 Fuller, Jones v. 27 276); 84, Ga. 87 App. S. E. (5 a) (107 544); v. 48 Ga. 341 Dunlap George, App. S. E. Shell (172 657); Petro leum v. Ga. Corp. Stallings, App. 51 351 S. E. (180 Whether 654). that point obiter, whether, to v. Jones was and if not Schofield obiter, the later can cases be reconciled with what was ruled in Brice, Collier and Hyatt v. Johnson v. or whether the true supra, Hodnett, be, as rule stated Hutcheson 990, v. 115 Ga. 993 (42 S. E. that the 422), question depends the intention upon of the par ties, term, without to the regard length need not be here since, in matter, view of that passed upon, present case must be determined to the adversely contentions of the plaintiff in error. concur, Bell, All the Justicés

Judgment except C. J. affirmed. J., dissent, Jenkins, J., ivho P. not Wyatt, participating. Justice. I concur in what is said division 1 Wyatt, I can not concur in opinion. majority ruling made in division nor of affirmance. judgment determine whether In order to or not the instrument under con- had the effect of creating sideration an estate vesting for years Nu lessee, Home Fraternity Association, in the Sigma we look first of the lease. The lease provides: the terms “The term for is the Association the use of the granted said lot under this hereof, is one from date year but with agreement the said Association for periods renewal of granted one year, for 99 maximum of lease further years.” provides that the same extended from automatically year year unless the lessee, ninety term, expiration any yearly before days gives the Regents intention to terminate the notice of lease. written It is argued 44 can

that this amounts to lease for provision only one year, amount to the creation of an period estate for because the years, Wadley, the lease is less than five v. years. covered Walker 124 Ga. 275 E. this said: “A lease contract (52 904), S. court with of land premises year, wherein owner demises one during an the tenant extend the lease option year to take and a further option/ option ‘notice intention this rental, which to increased notice acceptance given time such addi tenant at stated the commencement of preceding lessee, term, for ten at the election ab tional lease future first with lessee as to year solute optional the terms conditions prescribed under continuance Mitchell, App. See also Sterchi Bros. Ga. lease contract.” S. E. 537). (176 under is a The instrument now consideration lease for lessee, the first year at the election of the absolute for and optional future under with the lessee as to continuance the terms and con follow, lease It does how in the contract. not prescribed ditions ever, that because the lease is for a more than period of simply and five an estate for is created becomes vested in the years years, dictum We aware of the fact there is the effect that lessee. are to does, more, withoñt estate for five or more vest an leasing years a lessee; Jones, in v. notably in the 85 Ga. 816 years for Schofield Co., Anderson Kokomo Rubber 161 842 and v. Ga. (supra), case, was language In the the and purely obiter, (supra). Schofield not, case, obiter, the seems to be language Anderson but if the in the earlier divided court. the case a of Johnson v. decision Brice, had this court under a (supra), Ga. consideration a fifteen period years, and in a covering contract full-bench lease concurred, said: decision, in all the Justices did which “The court that the contract between Brice in and A. R. Hardi holding err not tenant, and and landlord that it did was one of not create an son Smith, 155 also See Ga. 717 years.” for (supra). estate Griffith “When the 61-101 owner Code, provides: of real estate The § the to and simply possess the right enjoy to another use of grants a for fixed time or at estate, either real the will the such accepts grant, the tenant relation of and landlord grantor, In such case between them. no estate passes exists out tenant and has landlord, only usufruct, and tenant which he !of except by not the landlord’s convey consent and is not sale; and all subject or of such real levy renting leasing estate of time for a less than five period years shall be held to con vey estate, such real only right possess enjoy to pass landlord, usufruct, no estate out of the and to unless give only shall contrary agreed upon by parties to the contract and so stated therein.” There is no in this section that language Code can be construed to mean that does, for five or more leasing years an more, without vest estate in for the lessee. This years provi sion of the that a for simply law lease less than five can years not create an estate for unless years expressly agreed in stated the contract or lease. If the period of rental is for more than five or an estate whether is created years, years in must lessee, vests depend upon lease con language tract and the intention of the Under terms parties. very section, no this Code estate for can be created or become lessee, vested in the the number regardless involved, of years when right possess the use of such “simply enjoy real conveyed.” 85-803, estate'is granted “An provides: estate for carries with it the use as absolute man estate, ner as a but not greater injury or the reversion; entitled either remainder or the acts of person omis sion and commission prescribed grounds of forfeiture an operate estate for life shall to the same effect as against tenant fur above, has been From what since years.” the period covered instant ease is more the lease than five years, whether an estate for years, lessee holds merely usufruct determined a must be consideration by of the property, quantity lessee’s of the under the lease rights and agreement. It will quality the statute that herein cited be observed provides the prop the by University or held System sold, erties owned bemay leased, disposed provided, wise of . . “or other the Board of determine first that such shall Regents property can no longer be in used the University System.” advantageously The resolution which it was in declared that the the Regents, of property could not used in advantageously the longer University System contained “And that the of leasing this language; this land as now contem interest the best is for University Sjrstem.” This plated lan indicates that the had no clearly Regents intention of guage part with the or control ing title to of this The lease property. agree ment only, the used provides that can be for one property purpose house; to wit: The of a fraternity chapter provides construction the house; both minimum and maximum cost for the obligates fraternity to abide the and by Regents; rules regulations the another rental of prohibits anyone except sale or the to property re fraternity Georgia; at the of existing operating University the “in the lessee to the quires keep buildings repair from the will and not detract premises good present appearance University of the appearapee buildings the and other of properties or all rendered of the lessee services Georgia;” pay to obligates furnished, taxes, which is significantly of except payment omitted. is completely The evidence discloses that the.property on one except surrounded of of by property University Georgia, no side where is a of There is railroad boundary right way. of University. or other than over the ingress egress property lease, occupying Can be said that' a conveying privilege under such using premises supervision, prohibitions, strict in ? think not. an estate land We regulations dignity rises ascertain, all this So far as have been able cases decided we to more or the leasehold estates for court Court of in which Appeals, held have been years, than five have been to create estates and possession lease contracts in which full of control right in lease now under was and the restrictions contained conveyed, that the it can not be said appear. Certainly consideration did not in this any lease contract appeared prohibitions appearing the cases cited in the majority opinion. refers certain isolated sentences in the to majority opinion usufruct, convey as an intention to more than indicating

contract transfer, sell, Association convey “The follows: at fraternity existing operating University other any at lease all during rights time this Association Georgia stated, than lot “other hereinbefore and premises,” sell, lease, or have no the said convey Association shall that these are in readily provisions It will be observed premises.” contract. If no granting provisions sense conveying no has been conveyed interest transferable contract, then there is transfer nothing terms of lessee actually was conveyed by we look what When convey. contract, terms we fail to find transferable interest con- clause. These terms mean veyed by could granting nothing more than that the lessee had limited right to transfer the lease itself. What been said , has also said with just reference of the loan provisions We .think further quoted agreement. that such were provisions simply meant to make sure that doubly the buildings erected should be and remain the property In far University System. as the one-dollar consideration referred to in the concerned, is we think majority opinion it would be “at least unusual” somewhat for the University Georgia an estate convey for to this located on property, University think, so small a We campus, however, consideration. that rental, to be erected was a will building and it be noted part that merely the contract did not extend the right or privilege erect the but this awas building, requirement the contract. faT as

So loan provision agreemént providing sale of the at referred to in the public outcry, majority concerned, it will be remembered that opinion, the lease contract lessee can be provides rights conveyed only to fraternity located at the In existing University of Georgia. words, other would be at there sale which public could public (cid:127) not bid buy. four, contract, think corners,” We its “looking con- usufruct, veys fraternity corporation simply sale. our was error subject levy opinion to overrule trial. motion for new Chief I am authorized to Justice Bell say concurs in this dissenting opinion.

MacNEILL, treasurer, v. WERTZ. July

No. 14910. 1944.

Case Details

Case Name: State v. Davison

Court Name: Supreme Court of Georgia

Date Published: Jul 10, 1944

Citation: 31 S.E.2d 225

Docket Number: 14869.

Court Abbreviation: Ga.