Pope v. Garrard , 39 Ga. 471 ( 1869 )

Brown, C. J.

1. In this case Mr. Pope rented from Garrard, as executor, a room in a building in the city of Columbus, with the counters and drawers in it, for one year, for a drug store, and gave three notes for the rent, the first note for the first half of the rent, and the other two, each for a quarter’s rent. Just before the expiration of the second quarter, the building, including the room so rented, was destroyed by fire, and the question is, was Pope liable to pay the two last quarters’ rent? We think the rule which fixes his liability is well settled in this State by section 2267 of the Revised Code, and by the decisions of this Court in White et al., vs. Molyneux, 2 Ga., 124, and Alexander vs. Dorsey, 12 Ga., 12.

2., But it was urged that he was not liable for the payment of the two last notes, as the house was destroyed before the commencement of the third quarter, for which it is insisted the first of the two last notes was given. The renting was for a year, and the notes were given in accordance with the contract, by which payments were to be made at fixed periods during the year. If the tenant did not intend to be liable for the rent for the remainder of the year, in case the premises were destroyed by fire, he should have protected himself, when the contract was made, by proper stipulations to that effect. Having failed to do so, and having rented for a year, and bound himself to pay the rent by installments, he is liable for the whole.

3. The evidence shows that the store-room was finished off by the landlord with proper counters and drawers for a drug store, and that these were rented with the room. They were put there by the landlord, and not at the expense of the tenant. They were connected with the realty. They were fixtures, and not personal property. When the contract was made, the tenant doubtless understood that they went with the room, and formed an important part of it. See Revised Code, sections 2192, 2193. These counters and drawers were saved by the efforts of the tenant when the house was destroyed, and he claims that he had a right to remove them to another store rented by him from a third person, and there to use them till the end of his term. In my opinion he had no such right. When they were severed from the realty, and saved, no matter by whom, they became personalty, and remained the property of the landlord, and he had the right to uso or dispose of them as he thought proper, (Revised Code, 2194,) and the tenant had no right to remove them to a house rented from another landlord, and use them there. The fact that the tenant saved them from destruction excites our sympathies in his favor, but it in no way affects the legal rights of the parties. We are not at liberty, in this litigation, to adjust the natural equities between these parties. We are to determine what are their legal rights.

It is insisted, however, that as the tenant had rented the store-room for the year, and the counters and drawers formed part of it, he was entitled to remove them to another place, and use them as he thought proper during the remainder of his term. If this position be tenable, it would have been equally so if the house had not been destroyed. Will it be contended that the tenant had the right, so soon as he rented the store, to take out the counters and drawers placed there by the landlord, and remove them from the lot, and use them disconnected with the premises for the term ? I suppose not. If he did not have the right before the burning, how did he acquire it afterwards ?

While the counters and drawers, as fixtures, formed part of the store-room as long as they remained in it, and were not severed from it, they were but the incidents to the thing rented, and were only intended by the parties to be used in connection with it. When the store-room, which was the principal thing in the contract, was destroyed, and they were disconnected and taken from it,(they became personalty, and ceased to be part of ikj Having become the personal property of the landlord, and the tenant’s interest in them having ceased, he had the right to dispose of them as he pleased, without consulting the tenant. With as much legal propriety could the tenant have claimed the right to take up the plank from the floor of the room, or the ceiling, and remove them to another room on lands not belonging to the landlord, and use them there during his term.

Under the decision in 12th Georgia Reports, 12, above cited, which I consider sound law, the defendant did not rent the land upon which the house stood. He only rented the room in the house. He had only the usufruct in the room, and when the room was destroyed, his interest in the premises ceased, and the landlord had the right to re-enter, and re-build, or otherwise dispose of the premises before the expiration of the term for which the tenant rented the room, without any violation of the rights of the tenant.

4. The only remaining question relates to the insurance. And I am satisfied that the Court did not err in rejecting the evidence on that point. The fact the landlord has, at his o\yn expense, protected his interest in the building by insurance in no way affects the rights or liabilities of the tenant, who has taken no such precaution as to his own interest. See the authorities cited above by counsel for defendant in error.

It is considered and adjudged by the majority of this Court that the judgment of the Court below be affirmed.

Warner, J., concurred, but furnished no opinion.