Parker v. Beeman , 28 Ga. 475 ( 1859 )

By the Court.

Lumpkin, J.,

delivering the opinion.

We are called on to construe the act of 1827 (Cobb, 701,) under which the summary proceeding was prosecuted.

The owner of the land demanded possession of the tenant, who, refusing to surrender the premises, the owner made oath that the term had expired, and obtained a recount to dispossess the tenant. It was executed, when the tenant made a. counter-affidavit that he did not hold under the person claiming. The sheriff reported his proceedings to the .next term of the Superior Court, an issue was formed, and submitted to the jury, who found against the tenant. He appealed from the verdict; when the appeal came up for trial the tenant was permitted to withdraw his claim, the Court holding, at the same time, that by doing so the whole case was carried out of Court. It also held that an appeal would lie in such a case. In which we think he was right.

But had the tenant the right so to withdraw his claim as to get rid of his liability for double rent, under the statute ? We think not. True, he had the privilege to cease to litigate his landlord’s right to the premises, which was a confession that he had been wrongfully kept out of.them. But, having made himself subject to the penalty.of the law for setting up a frivolous claim, and thereby withholding the land from the true .owner, he ought not to be allowed, by his own voluntary act, to relieve himself of the . consequences.

Under the claim law of 1811, a practice. obtained of allowing a claimant to withdraw his claim, and put it in again to his parties. We cannot very clearly see the reason.for such a practice. The Legislature of 1821, after reciting that a construction had been put upon the act of 1811, which tended to the manifest injury of the community, and frequently produced not only injustice to plaintiffs in execution, but evidently to oppress and harrass them by the delay of justice, enacted that the claim should be tried at the first term, and claimant was required to give bond, to indemnify the creditor for any damages which he might sustain, and which the jury were allowed to assess to an unlimited amount, not less than ten per cent, and the claimant was permitted to withdraw his claim only, (Cobb, 532-533,) and that prior to an appeal, if damages had been assessed. — (8 Ga. Rep., 184.)

Under the rent law of 1827,' no bond of indemnity is given, and the only compensation the owner has is, to recover double rent of the tenant. It should not be in the power of the tenant to deprive him of this. With Squatter-Sovereignty, in its political aspects, we have nothing to do. It is evidently not a favorite with our people, as applicable to private property.