Werner v. Footman , 54 Ga. 128 ( 1875 )

Trippe, Judge.

1. This was a proceeding by the landlord to remove a tenant who was alleged to be holding beyond his term, and refusing to deliver possession. The property was in the city of Savannah, and the process was sued out under the laws having reference to that city: Code, secs. 4890, 4892. Neither those laws, or the general laws of the state upon that subject, recognize that the tenant in such a case can set up any defense in his counter-affidavit other than that his lease has not expired, or that he does not hold under the person making the application, or under any one from whom he claims the premises, or who claims from the one-suing out the warrant. The statements made in this counter-affidavit show neither of these facts, except that the lease had not expired. The fact that another person had some time previously sued, out a similar warrant, which the defendant arrested by a counter-affidavit, is not sufficient. It did not appear that such a case was then proceeding against him.

2. Section 4890 does not require that the landlord shall make oath that the possession liad been demanded, and the tenant refused to deliver. If the affidavit states that the tenant refuses to deliver possession, it is sufficient, after reciting the other necessary facts. *

3,4. We are not prepared to say that the motion for a non-suit could not have been properly granted when it was made. The plaintiff had not proved a refusal on the part of the tenant at that stage of the case. Had the evidence concluded just there, and a verdict been rendered against defendant, his right as to a new trial would be different. But though a de-; fendant may be entitled to a non-suit upon the conclusion of plaintiff’s evidence, yet if, on its refusal, evidence be subsequently introduced which authorizes a verdict for plaintiff, it will not be set aside on account of the refusal to grant the non-suit: Hanson vs. Crawley, 51 Georgia, 528. In this immediate connection it may be best also to notice the charge of the court upon this point. That charge was, “that it was the tenant’s duty, at the expiration of the lease, to deliver possession to his lessor without any request so to do by the lessor, and a failure so to deliver, even though not requested, amounted, in law, to a refusal, and might be so treated by the landlord.” We are not satisfied that this was strictly correct. It may be a tenant’s duty to vacate the possession on the expiration of his contract of rent; but it is putting it pretty strong upon him, as a legal duty, to say that he shall deliver'to the landlord, even though not requested. In many instances this might be impossible. If lie leaves the possession vacant it is generally sufficient, for it is certainly as much the landlord’s duty to ask for the possession as it is the tenant’s to go to him to surrender. When the tenancy expires all that the tenant has to do is to quit, unless there be something in the contract beyond that for him to do. The court scarcely meant -to the contrary of this. Doubtless, his meaning was that if the tenant did in fact hold over, it was, in law, equivalent to a refusal.

5. Be this as it may, under the evidence the verdict was right. The tenant notified the landlord that he intended to hold on to the property. The landlord and another witness testified that the tenant said he would give the plaintiff trouble to get possession. The tenant did, in fact, hold possession beyond the term, and still held it when the warrant issued, and then set up that his lease had not expired. This was sufficient to dispense with further proof upon the point of refusal to deliver possession.

6. The contract of lease was in writing. The right of the landlord as to having possession at the end of the lease was fixed by that contract. The evidence was strong that he had not yielded that right, and also that the tenant would not surrender the possession. It was not competent for the defendant to evade the legal right of his landlord, under the written contract, by proving that a certain custom existed between landlords and tenants in the city of Savannah.

7. The contract of lease was for five years. The tenant had ninety days after its termination to remove certain improvements he might put upon the premises. The warrant was not sued out until after the ninety days had expired. The tenant cannot complain of the charge of the court that the lease did not terminate so as to make him a tenant holding over until after the close of the ninety days, and that thejury could find double rent from that time. The defendant claimed that this charge deprived him of the benefit of a presumption that by á delay of three months the landlord acquiesced in his continuing as a tenant for another year; that is, that it was some proof of a renewal of the lease for one year more. We cannot think that under the terms of the contract as to the ninety days, and the evidence as to the refusal to deliver possession, such a presumption could exist.

Judgment affirmed.