Watson v. Sudderth , 1924 Ga. App. LEXIS 413 ( 1924 )

Belt., J.

1. The entry of levy did not show the defendant in fi. fa. in possession of the property. The burden of proof, therefore, rested upon the plaintiff in fi. fa. and not upon the claimant. Civil Code (1910), § 5170. It was not reversible error, however, in the absence of a timely and proper request, that the trial judge omitted to instruct the jury upon the burden of proof. Brooks v. Griffin, 10 Ga. App. 497 (5) (73 S. E. 752); Whittle v. Central of Ga. Ry. Co., 11 Ga. App. 257 (1) (74 S. E. 1100); Jackson v. State, 31 Ga. App. 383 (120 S. E. 668).

2. Where a tenant subleases a part of a farm, the title to crops grown on the subleased premises is in the subtenant. Boyd v. Kinzy, 127 Ga. 358 (1) (56 S. E. 420); Nash v. Orr, 9 Ga. App. 33 (4) (70 S. E. 194); Andrew v. Stewart, 81 Ga. 53 (3) (7 S. E. 169); Worrill v. Barnes, 57 Ga. 404 (1); Teel v. State, 7 Ga. App. 600 (2) (67 S. E. 699). Under the facts of this case it was error to instruct the jury that “if the lands were subrented by [the original tenant] with the knowledge and consent of the parties from whom he rented, . . though they may have had a lien thereon, the title would still be in the man who rented the land. In other words, the title [would] vest in the roan who rented the land.” This charge was susceptible of the construction that the title to the crops grown on the subrented premises would be in the original tenant.

Decided May 17, 1924.

3, Where a tenant, with the knowledge and consent of his landlord, subleases agricultural lands and takes a note from the subtenant, payable to himself, which he transfers to the landlord, and where the subtenant delivers a part of the crops grown by him to the original tenant, who accepts the same solely as a go-between of the subtenant and the landlord, selling the property and paying the proceeds over to the landlord in satisfaction of the subtenant’s transferred note, the original tenant having reserved no rights against the subtenant in the transfer and claiming no interest in the property, the title thereto never vests in the original tenant. Such were the facts appearing, without dispute, in this case. The verdict found for the plaintiff in fi. fa. was therefore unauthorized by the evidence. Bolton v. Duncan, 61 Ga. 103; Flournoy v. Wardlaw, 67 Ga. 378; Lathrop v. Clewis, 63 Ga. 282 (1) (2); McCulloch v. Goode, 63 Ga. 519; McBurney v. McIntyre, 38 Ga. 262 (1); Strickland v. Stiles, 107 Ga. 308 (3) (4) (33 S. E. 85); Beall v. Patterson, 146 Ga. 233 (2) (91 S. E. 71); International Agricultural Corp. v. Powell, 31 Ga. App. 348 (1) (120 S. E. 668).

(a) In so far as the plaintiff in ft. fa. is concerned, the above ruling is' not altered by the fact that the subtenant may not have known that his note to the tenant had been transferred to the landlord, since it appears without dispute that the original tenant did not accept the cotton as owner, but, even if under, an assumed agency, received it only for the landlord as his principal, undisclosed both to the subtenant and the claimant. McConnell v. East Point Land Co., 100 Ga. 129 (2) (28 S. E. 80); Civil Code (1910), § 3596.

4. Under the rulings in the two preceding paragraphs, the court erred in refusing the claimant’s motion for a new trial.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur. W. I. & P. Z. Geer, for plaintiff in error. N. L. Stapleton, contra.