Beasley v. Lee , 155 Ga. 634 ( 1923 )

Hill, J.

(After stating the foregoing facts.)

There is no merit in the motion to dismiss the bill of exceptions, which was on the ground that there was no final judgment rendered in the ease; that a judgment dissolving a temporary restraining order is not a final judgment. The trial judge both dissolved the temporary restraining order and also refused in terms to grant the injunction. The judgment rendered was final.

We are of the opinion that the corat should have granted an injunetipn, under the peculiar facts of this case. Taking the pleadings and the evidence in the case at their full face value and applying the principles of law which are applicable thereto, to permit the dispossessory warrant proceeding, now pending in the trial court, to proceed under the ruling of the Court of Appeals as applied to the facts of the case would be to deprive Lacey of his right to set up his defense that the title to the land had been alienated pending his occupancy of the. land under Lee. In Lee v. Lacey, 26 Ga. App. 126 (105 S. E. 619), it was held: "In a summary proceeding by a landlord to dispossess a tenant as one holding over and beyond the expiration of his term, it is no defense that the landlord’s title to the premises expired before the institution of the dispossessory proceeding, and that the tenant is now holding under the landlord’s successor in title, where it does not appear that after the creation of the tenancy the landlord parted with his title, or that the alleged successor to his title is in privity with it. See, in this connection, 1 Taylor, Landlord and Tenant (9th ed.), § 180; Raines v. Hindman, 136 Ga. 450, 453 (71 S. E. 738, 28 L. R. A. (N. S.) 863, Ann. Cas. 1912C, 347); Civil Code (1910), § 3698; . . In such a proceeding it was error to inquire into the nature of the landlord’s title; and the verdict for the defendant was contrary to law.” We are of the opinion that, properly construed, the Court of Appeals laid down the correct rule in such cases; but we are also of the opinion that the wrong application was made to .the facts of .that ease. It appeared from the record in that case that the landlord did part with his title during the term of the lease, and therefore that fact could be set up, under the repeated rulings of this court to the same effect. It also appears from reading the statement of that case that an application for certiorari was denied by the Supreme Court, and this was probably on the ground that the Court of Appeals had correctly stated the rule of law as announced in that case. The same rule was laid down clearly and concisely in Raines v. Hindman, 136 Ga. 450 (supra), where this court held: “Where it is shown that the landlord parted with his title during the term of the tenancy, he can not evict the tenant after the expiration of such term on the ground that the latter is a tenant holding over beyond his term, or on the ground of the non-payment of rent. . . This is true though the tenant may not have attorned to the grantee of the landlord.” The Court of-Appeals cited the Baines case as authority for its decision; and if there is any conflict between the two decisions, of course the Lee case, decided by the Court of Appeals, must yield to the Baines ease, decided by this court. In line with the Baines case is that of May v. McDaniel, 145 Ga. 160 (88 S. E. 934), where this court held: “Where, during the year for which Teal estate was rented the landlord sold it and gave bond for title to the purchaser, who was to have possession at the end of the year for which it was rented, the vendors recognizing his right thereto, after the end of the year the vendee could proceed against the tenant by suing out a warrant to dispossess him, upon his refusal to deliver possession.”

Was there a valid lease between Mrs. Mary A. Beasley and John M. Lee, so as to constitute him a tenant for the term of five years, as provided in the contract? Our Civil Code (1910), § 3.222, declares, that, to make the following obligations binding- on the promisor, the promise must be in writing signed by the party to be charged therewith, or some person by him lawfully authorized, viz.: “ . . 5. Any agreement (except contracts with overseers) that is not to be performed within - one year - from the making thereof.” And § 3693 provides: “Contracts creating the relation of landlord and tenant for any time not exceeding one year may be by parol; and if made- for a greater time, shall have the effect of a tenancy at will.” In Nicholes v. Swift, 118 Ga. 922 (45 S. E. 708), this court held: “Where A and B entered into a parol contract by the terms of which B was to rent a certain storeroom from A for the term of two years, at a stipulated price per year, and B went into possession of the same under such contract, a tenancy at will was created, which either party could terminate by complying with the Civil Code [of 1895], § 3117. Accordingly, where B, more than a month before the expiration of the first rental year, gave a written notice of his intention to terminate the tenancy at the end of that year, and, before the beginning of the second, moved out of the rented premises, tendered the possession thereof to the landlord, and paid one year’s rent, his liability under the contract was completely extinguished.” In delivering the opinion of the court in that case, Fish, P. J., said: “A parol contract creating the relation of landlord and tenant, if made for a greater period of time than one year, has the effect of a tenancy at will. Ib. § 3117; Western Union Tel. Co. v. Fain & Parrott, 52 Ga. 18. Such a tenancy may be terminated by either party, by giving the other party the requisite notice for such purpose, two months notice from the landlord being necessary and one month from the tenant being required. § 3133. In the present case, the tenant on the 20th of May gave notice of his intention to terminate his tenancy on the first of July thereafter, and so complied with the law requiring one month’s notice to the landlord of such intention, and, before the date named, moved out of the rented premises and tendered the keys and possession thereof to the landr lord. This terminated the tenancy at the end of the first year, and the tenant was not liable for rent thereafter. The contention of the defendants in error is that there was such part performance of this contract on the part of the landlord as to make it binding upon the tenant for the full term stipulated in the oral contract. This contention is unsound. If mere possession and occupation of the rented premises by the tenant, with the landlord’s consent, would be sufficient to make such a contract binding on the tenant, for the term specified therein, the provision in § 3117, that parol contracts creating the relation of landlord and tenant, if made for a greater time than one year, shall have the effect of a tenancy at will, would be meaningless.”

In Hayes v. Atlanta, 1 Ga. App. 25 (2) (58 S. E. 1087), where there was a written lease for two years, signed by the lessee and by the owner of the premises through her agent as lessor, but it appeared that the agent’s authority was in parol only, it was held that “such a contract, so evidenced as against the lessor, was, as to her, as if made in parol, and became a tenancy at will, upon the lessee entering into possession under it.” Judge Powell speaking for the court said: “ Therefore the lease in this case stands as if Mrs. Alexander’s name had never been attached to it. It was signed and sealed by Hayes, and, under the decisions of our Supreme Court, unquestionably constituted an offer on his part to make the contract, but was unilateral and was not mutually binding and enforceable until it was accepted by Mrs. Alexander in the manner contemplated. Sivell v. Hogan, 119 Ga. 167 (46 S. E. 67 [and other cases cited]. The acceptance contemplated was the granting on her part of a lease of the premises for a term of two years, which, under the statute of frauds (Civil Code, § 2693 (5)), and under § 3117, required a writing from her.”

Applying the principle ruled in the foregoing decisions to the facts of the instant case, we are of the opinion that if Mrs. Beasley never signed the lease contract, there existed nothing but a tenancy at will between her and Lee; and that being so, the vendees of Mrs. Beasley had the right, upon giving the notice required by law, to terminate the tenancy, which questions of fact, if in controversy, can be determined on the trial of the case before a jury. In view of the foregoing decisions and of the record, we are of the opinion that this is a case peculiarly for the intervention of a court of equity, which will prevent not only a multiplicity of suits,-but which will apply equitable principles in the trial of the case, in order that the rights of all the parties, whatever they are, may be protected and preserved. We reach the conclusion that the trial court erred in refusing the injunction.

Judgment reversed.

All the Justices concur, except Hines, J., disqualified.