53 Ga. App. 594 | Ga. Ct. App. | 1936
Where a tenant rents land from a corporation, and the lease is executed in the name of the corporation by an insurance company as mortgagee in possession, and shortly after the tenant enters upon the premises the charter of the landlord corporation expires, but the tenant continues to occupy the premises and to pay rent and deal with the landlord as a corporation,
Moreover, as the law now is, a corporation is not entirely extinct by the expiration of its charter. Code, §§ 22-601, 22-602, 22-1208, 22-1210, 22-1211, 22-1301; Huey v. National Bank, 177 Ga. 64 (169 S. E. 491), and cit. After its expiration, the charter may be renewed as provided by statute, and “if it is so revived, . .
"The tenant may not dispute his landlord’s title.” Code, § 61-107.
The verdict and judgment against the defendant in the dispossessory proceedings in this case, for rent and for possession of the premises, were not contrary to law and the evidence because the plaintiff realty company was not the landlord, in that it appears that the defendant was tenant of the Northwestern Mutual Life Insurance Company. It appears that the insurance company was a mortgagee in possession under a contract under which it had the right to maintain an action in the name of the plaintiff to recover any rents due on the premises. Generally, and unless the contract provides otherwise, the mortgagee in possession of real estate of the mortgagor collects the rents as trustee and agent for the mortgagor, and applies the same to the ex-tinguishment of the mortgage debt. Its acts, regarding the custody and management of the mortgaged premises in so far as any tenant is concerned, are the acts of the mortgagor. This is not a case where the mortgagee had foreclosed its mortgage and by legal sale of the premises had acquired title and taken possession under such title. The defendant was not a tenant of the mortgagee as owner, but as mortgagee in possession. The rights, duties, and liabilities between the plaintiff and the insurance company, as mortgagee in possession, did not affect the tenant’s liability. See generally, on this subject, 41 C. J. 612, 627, §§ 580, 604 et seq.
The statement of the plaintiff’s attorney that the plaintiff was not seeking to recover any rent, but was only seeking to recover possession of the premises, would not amount to a retraxit. A retraxit is the act by which a plaintiff abandons his claim and withdraws his suit. Its effect is to bar all actions of a like or a similar nature. Code, §§ 3-507, 3-508; Harvey v. Boyd, 24 Ga. App. 561 (101 S. E. 708).
The defendant leased two offices from the plaintiff for one year beginning February, 1934, at a monthly rental of $30. The defendant occupied these offices and paid the rent until October, 1934, when he desired to change his office to a single office in the same building. The defendant alleged that he entered into an oral agreement that he rent a certain other office in the building for one year at $15 per month, the lease to start on November 1, 1934, and that at the instance of the plaintiff’s agent in charge of renting offices in this building and negotiating and closing leases with tenants, upon notice given to him by the defendant, then agreed to and did cancel the written lease and did make the oral agreement. The defendant further set rip that when he moved out from these two offices and started to move into the new office pursuant to this agreement, he found the same still occupied by other lawyers; that he so notified the plaintiff’s agent, who thereupon told the defendant to go back and occupy his two former offices until he, the agent, could get such persons out of the new office, and the defendant could pay rent on the new office at the rate of $15 per month and continue to occupy his former offices until such time; that the defendant did so, but did not use both of his former offices, and the plaintiff took charge of the one he did not use, and had it locked; that the defendant paid the rent of $15 a month for November and December on the new office, and also paid all rent on his former offices up to November 1, 1934, at the rate of $30 monthly; that the defendant offered to pay the rent on the new office of $15 a month for the months of January and February, 1935, but the plaintiff’s agent refused to accept the same; and that the plaintiff’s agent did not succeed in having the new office vacated, and the plaintiff now has no right to disregard such oral agreement with the defendant and to dispossess him, based upon
Judgment reversed.