Mahoney v. McKenzie , 27 Ga. App. 245 ( 1921 )

Hill, J.

(After stating the foregoing facts.)

1. It is alleged in the motion to dismiss the writ of error that the questions involved have become moot, since the plaintiff in error has surrendered the premises in dispute, and there is attached to the motion, as proof of this statement, a letter from the tenant to the landlord, stating that he would surrender the premises upon a later date mentioned therein; but there is no other evidence as to whether the tenant has surrendered the premises or not. The pleadings in this case do not show that the premises have been vacated by the tenant, nor is there any legal evidence before this court to this effect. Neither would the questions involved be moot even if the tenant has removed from the premises. The question as to double rent, under the statute, from the date of the demand for possession of the premises would still be involved.

2. As has been frequently held by the courts of last resort in this State, forfeitures are not favored. And in cases of doubt, in contests between landlords and tenants, the issue will be resolved in favor of the tenant. The lease contract in this case contained many extremely stringent provisions for the protection of the landlord, and but very few for the protection of the tenant. The lease provided that the rent should be paid on the first day of each month in advance at the office of the agent of the landlord. This provision for the payment of the rent had been waived each month for seven months of the tenancy prior to the issuance of the dispossessory warrant. It is true that the tenant was notified in September that he would be held to strict compliance with all the provisions of the lease from the date of the notice. And yet the landlord appears to have again waived this provision, for he testified that he personally placed a notice of the rent being due in the maiLbox of the tenant the last day of September. In other words, it appears that the landlord did not rely upon the' terms of the lease, but endeavored to demand the rent due. The tenant testified that the' notice mentioned was not received by him, or any other notice until the 4th of October, when possession of the premises was demanded by the agent of the landlord. The common law required that a demand for the rent should by made on the day that it was due, and should be before sundown of that day, and, if no place was named by the lease for the payment of the rent, then the demand should be made on the land and at the most notorious place thereon, this being the front door of the dwelling house if there is one. Tiffany’s Landlord & Tenant, 1377, 1757; Jones on Landlord and Tenant, § 503. “ Where by the terms of a lease rent is payable on a day certain in order to create a forfeiture, it must be demanded on the premises and on the day prefixed.” Jones v. Eeed, 15 N H. 68. According to the tenant’s testimony, the first notice he received was a demand for the possession of the premises by the agent of the landlord on the 4th day of October. He promptly sent a check for the rent to the office of the landlord’s agent authorized by the terms of the lease to collect the same. This check was refused and returned to the tenant the following day, on which day the dispossessory warrant proceedings were taken out. No question is raised as to the sufficiency of the tender of the rent thus made by the tenant. The landlord waived his right of reentry, provided for in the terms of the lease, and adopted instead the methods prescribed for dispossessory warrant proceedings, as provided by §§ 5385 et seq. of the Civil Code of 1910. The affidavit for the issuance thereof contained the statement that the rent was then due. As a matter of fact the rent due had been tendered the agent of the landlord authorized to collect the same, and had been refused at that time.

“ Where the record in such case shows that before the commencement of the suit the lessee tendered the amount paid by the lessors for taxes, etc., (a failure to pay such, amounts being stipulated as a ground for forfeiture, as is non-payment of rent), held, that the lessee thereby complied with the terms of the lease.” Burns v. McCubbin, 3 Kan 221 (87 Am. D. 468). It appears that it was not so much for the failure of the tenant to pay the rent on the first of the month that the dispossessory warrant proceedings were instituted. Possibly it may have been that the premises could be rented again at that time for an increased rental. No question was raised as to the tenant’s ability to pay the rent or his financial responsibility for his obligations. Nor had the terms for which the premises had been rented expired. We do not think that dispossessory warrant proceedings can be used arbitrarily and summarily by a landlord for the purpose of ousting a tenant and securing possession of premises without good cause. They were intended for landlords honestly and justly entitled to the relief sought therein and proceeding in good faith. The provisions of the lease having been waived by the landlord, the tenant was entitled to a demand for the rent due, and, the evidence showing that no such demand was made and that the rent due had been tendered before the affidavit was made for the issuance of the dispossessory warrant, we think the court erred in overruling the certiorari. Parker v. Gortatowsky, 129 Ga. 623 (59 S. E. 286); Hicks v. Beacham, 131 Ga. 89 (62 S. E. 45).

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.