Hodges v. Waters , 1905 Ga. LEXIS 693 ( 1905 )

Cobb, P. J.

The rule that one who goes into possession of land as a tenant of another is estopped, to deny tine- title of'him who occupies the relation of landlord in the agreement is- familiar law. In the application of this rule it is immaterial whether the1 landlord is the owner or has any legal interest in the premises. • It is sufficient as between him and his tenant that he claims - ownership, and as a result of this claim the tenant is put in possession and- allowed to occupy -the premises. Grizzard v. Roberts, 110 Ga. 41. Upon the question as to whether this estoppel operates where-the-tenant, at the time the contract of rental is made, is already in possession through another and former landlord, or another-claim of-title, the authorities are at variance.. In Franklin v. Merida, 35 Cal. 558, 95 Am. Dec. 129-,-the Supreme Court of California-held that if one in possession takes a lease from- a stranger, the.lessee so -in possession is not estopped toideny the title of the lessor, since the latter parts with nothing, and the former has obtained nothing-by--the transaction. This decision seems to-follow an older decision, and-in both ■cases one of the-judges dissented.-. The better rule seems to be that laid down by the Supreme Court-of ..Colorado, in Lyon v. Washburn, 3 Colo. 201, where it is said that an attornment .by. one in possession' estops the- tenant from denying his landlord’s title, unless the attornment was brought about by fraud, force, .or mistake of fact. In the opinion Wells, J., saya-: “To avoid the assertion of a hostile title, one may.-lawfully contract, to pay for his- own; and-if the threatened litigation be forborne, he is bound by Iris -promise; and, .so the tenant 1 holding under a, lord, where title is unimpeachable, may, if he will,' undertake -to pay rent to everj'- .stranger who demands -it. Such, demand.implies the threat-of litigation’and dispossession if- the -demand be refused; and if made in good faith, and without fraud or other improper-practice to. induce-concession, and if- the tenant .yield toi it with a full understanding -;of all the- facts which are material to the question oí'his liability, it'is difficult to see why he should' not be bound by his' promise, even though he should become liable thereby'to'pay triple rent for the same premises.” See also Cater v. Marshall, 72 Ill. 609; Lxicas v. Brooks, 85 U. S. 436. In Hamilton v. Pittock, 158 Pa. St. 457, an instruction that “A mamma]5, if he sees fit, where there are conflicting titlesj-take a'lease'from each of the owners of it; and if he is not deceived by assertions in regard to the matter, he would have to |iay both,” was approved as sound law.

Hodges, under his admissions, was a tenant of Mrs. Waters, the •contract being 'that he was to have the use of the place, and the rent was to be paid by furnishing her with support. It is immaterial whether Mrs. Waters had any interest in the premises as between her and Hodges. He recognized her as his landlord, and he obtained possession from her; and ás between them he can not raise any question as to her title. By express agreement under seal, in the year 1896 as well as the year 1897, he recoghizéd the plaintiff as his landlord, and agreed to pay him a stipulated amount as rent, the written agreement between the parties having all the formalities required to create the technical 'relation of landlord', and tenant'. So far as those years were concerned he occupied the relation of tenant to both plaintiff and his mother, and as against each he was estopped to deny this relation, certainly so fai'as the payment of rent was concerned! He could not defeat the claim of Mrs. Waters for rent by showing that tlie agreement between-her and her son was invalid for any reason; neither could he defeat the claim of her son for the rent of those years by showing that the title of the mother was superior. Having received possession of the land from Mrs. Waters, he could not by any act of his place himself in a position where as against her he could deny her title.' So long as 'the possession thus acquired continued he was estopped from denying her title as landlord. „ To deny her title it was necessary for him to surrender to her that possession which he had' received 'from her, and re-enter after such surrender under some other person. Therefore an agreement to pay rent from year to year would arise between Hodges and Mrs. Waters until there had been an actual surrender of the premises to her. Hodges’ possession having been in no way dependent upon any act of the plaintiff, to what extent the agreement between him and the plaintiff would create a liability for rent of the premises would depend upon the terms of the agreement. If Hodges, upon a sufficient consideration, agréed to pay the plaintiff rent for 1896 and 1897, he would be bound by this agreement and must pay the rent. But after the expiration of the term fixed in the agreement, his obligation to pay rent depending upon the agreement alone, and his possession not having been obtained through the person to whom the promise was made, there would be no obligation upon him to attempt a vain and idle thing, that is to surrender the premises belonging to one person to another who was not entitled to it. He wás not compelled at the end of the year 1897 to abandon possession of the premises which he at all times held'under Mrs. Waters, in order to prevent a liability on his part to pay to her son rent in the future. Not having acquired possession from her son, the estoppel raised by the contract to pay rent was no broader in its operation than the contract provided for; -and he was therefore hot estopped from denying after 1897 that he was no longer liable to pay rent as a tenant to the son of Mrs. Waters. If, at the time the defendant had made the contract to pay rent to the plaintiff, the plaintiff had been in jDossession claiming title to the property as his own, and no other person’s rights were to be affected, then his entering into a contract to pay rent would have made the defendant a tenant of the person to whom the rent ivas payable, and render him liable to all the incidents of such a tenancy. See Johnson v. Thrower, 117 Ga. 1007; Willis v. Harrell, 118 Ga. 906(9). The defendant was liable to the plaintiff for the rent of the years 1896 and 1897, which he expressly agreed to pay; the consideration for such promise being the quieting of his possession from the threat of eviction madé by the plaintiff. The defendant having testified that- he had never agreed to.' pay rent for any other year than those named, the judgment must be reversed’ upon that assignment of error which complains that the’ court erred in charging the jury that if at any time the defendant had recognized the plaintiff as his landlord, he could never thereafter be heard to deny his obligation to pay rent so long as he remained in possession of the premises.

Judgment reversed.

All the Justices concur.