Smith v. Singleton, Hunt & Co. , 71 Ga. 68 ( 1883 )

Hall, Justice.

The material question made by this record, precisely stated, is whether one who makes a contract for the purchase of land, with a person assuming to act as agent of the owner, and subject to the approval and ratification of the latter, and who goes into possession under this contract, which is never ratified by the owner, is a tenant at sufferance, and subject to be turned out of possession by the statutory process against a tenant holding over, after possession has been demanded and refused.

1. That the defendant in the warrant did not enter upon the premises as a wrong-doer, is evident. He went there with the consent of the plaintiff’s agent, who had authority to take care of and manage the same, and perhaps to rent them out. He did not go there under a contract of rent, but under an agreement to purchase, if the agreement was ratified by the owner. Although he remained.there several years, he did so at the will and sufferance of the proprietor, who, though apprised of the circumstances, never ratified the contract made with the party acting as his agent for the specified purposes above set forth, but who had no authority to sell, and who, in fact, claimed none. The transaction amounted to nothing more than an oiler to purchase, which was never accepted. There was no contract of sale, the performance of which could have been enforced, either at law or in equity. No rent was asked or charged until the owners demanded possession, and the defendant refused to deliver it. According to Blackstone, 2 Comm., 150, “ an estate at sufferance is where one comes into possession of land by lawful title, but keeps it afterwards without any title at all.” The same definition was recognized and acted upon by this court, in Godfrey et al. vs. Walker et al., 42 Ga., 562, 575, and under circumstances very similar to those in this case ; indeed, in all material respects, the two cases are so much alike that, on principle, it seems impossible to distinguish them. This case is clearly distinguishable from Brown vs. Persons, 48 Ga., 60. There the party was in possession under a perfected contract of purchase, and had a bond to make him titles, upon the payment of the purchase money. His failure to pay the purchase money when it fell due did not convert him from a vendee into a tenant. What he contracted for was the entire fee, and, until dispossessed, he had a perfect right to redeem by complying with the terms of his contract; even after suit brought, and before judgment, he could thus prevent an ouster.

2. It is not necessary to determine whether, as tenant the defendant had a right to purchase and have conveyed to him the land he occupied, at the sale of the same for taxes. It is evident that there was evidence enough to justify the jury in finding that this land was redeemed by the owner. All the issues pertaining to this question were submitted to the jury, under proper instructions from the court.

3. A tenant at sufferance, after demand made and refusal to .deliver possession, is liable for rent, (Right, ex dem. Lewis et al. vs. Beard, 13 East, 210; S. C., 7 Id., new ed., 115 ; Jackson, ex dem. Livingston vs. Niven, 10 Johns. R., 335), like any other tenant holding over, and where the execution of a warrant for his removal is arrested by a counter-affidavit, and the issue thus formed is found against him, he is liable for double rent, and this was the extent of the finding by the jury in this case. Code, §§2282, 2285, 4077 to 4081 both inclusive.

Judgment affirmed.