Allen v. Allen , 154 Ga. 581 ( 1922 )

Hines, J.

(After stating the foregoing facts.)

Unquestionably a dispossessory warrant will not lie Tmlpps the relation of landlord and tenant exists. If the defendant holds possession otherwise than as tenant, such as purchaser, donee, or equitable owner, this harsh remedy is not applicable. Civil Code

(1910), § 5385; Clark v. Cassidy, 62 Ga. 407, 412; Watson v. Toliver, 103 Ga. 123 (29 S. E. 614); Henry v. Perry, 110 Ga. 630 (36 S. E. 87); Sharpe v. Mathews, 123 Ga. 794 (51 S. E. 706); Garrick v. Tidwell, 151 Ga. 294 (106 S. E. 551).

But the real question to be determined in this case is this: Is the defendant concluded and estopp'ed by the decree against him in his action for specific performance of the alleged contract between him and the plaintiff, under which he claims he took possession of the land in dispute, from afterwards setting up the same contract in defense of proceedings to dispossess him as a tenant holding over, in order to show that his entry upon the land was not as tenant, but in the dual capacity of donee and purchaser ? If the adjudication in the specific-performance action was of the same subject-matter as that involved'in the present proceeding, that adjudication should end this litigation. Civil Code (1910), § 4335. The judgment in the former suit concludes the parties as to all matters put in issue, or which, under the rules of law, might have been put in issue in that cause. § 4336. So the judgment of a court of competent jurisdiction is conclusive between the parties, as to the facts which it decides, until set aside. § 5943. So where plaintiffs sued out a dispossessory warrant against the defendant as a tenant at sufferance, and the defendant filed an affidavit denying such tenancy, and a verdict was returned in favor of the tenant, a judgment based thereon was held conclusive of the fact that the tenant did not Ipfid as their tenant. Tomlinson v. Driver, 53 Ga. 9. So where one as the owner of certain land sued out a warrant to dispossess another as his tenant, on the ground that he was holding the land over and beyond the term of rental, and in defense to such proceeding the defendant averred that he was not the tenant of the plaintiff, but was in possession of the premises under bond for title as a purchaser from the plaintiff, with the purchase-money fully paid, a judgment awarding possession of the property to the plaintiff was held conclusive between the parties, not only on the issue of the relation between them of landlord and tenant, but likewise on the issue of the equitable title of the defendant, growing out of the payment of the purchase-price in full. Hammond v. Thorton, 107 Ga. 259 (33 S. E. 183). Where in a dispossessory proceeding the defendant sets np as a defense that he is not the tenant of the plaintiff, but is the equitable owner of the land under a parol gift of the land from the plaintiff, and the question of title is actually decided by the superior court, the judgment therein rendered may be pleaded as an estoppel to an action of ejectment for the land between the same parties. Garrick v. Tidwell, supra. Where an equitable action was brought for a general accounting, to which was attached a contract relating to land, which the plaintiff claimed was a contract of purchase, and which the defendant contended was one of rental, and on the trial, the contract being introduced, a judgment was rendered finding the plaintiff indebted to the defendant in a given sum as rent for land described in the contract, such judgment was conclusive against the plaintiff both as to the character of the contract and the amount of rent due under it, in a distress warrant brought by the defendant against the plaintiff to recover the amount found by the judgment as rent for the land. Price v. Carlton, 121 Ga. 12 (48 S. E. 721, 68 L. R. A. 736).

In the case at bar the defendant sets up, to show that he was not the tenant of the plaintiff, but the equitable owner of the premises in dispute under an oral contract of gift from the plaintiff, the same contract which he sought to have specifically enforced in his former action; and the verdict and judgment in the latter action in favor of the plaintiff in the present proceeding is conclusive on the defendant, both as to the nonexistence of such contract, and as to his relation of tenant of the plaintiff. Both the issues of fact, of the existence of such contract, and whether he was the equitable owner of the premises or the tenant of the plaintiff, were necessarily involved in the trial of the former case; and the judgment in that case concludes and estops the defendant from setting up such contract to show that he was the equitable owner of this land, and not the plaintiff’s tenant. In affirming the judgment of the lower court, this court put its decision both upon the indefiniteness of the contract and upon the want of clear, strong, and satisfactory proof of its existence. Allen v. Allen, supra. The defendant’s defense fell with his defeat in the former action. He cannot rely upon this contract to defeat the present proceeding. It is now a stone wall standing in his way. This disposes of all grounds of error relating to the rejection by the court of evidence offered by the defendant to establish said contract, and the refusal of the court to rule out the record in the former action.

It is insisted that the court erred in refusing to rule out the record in the former action for specific performance, on the ground that there was no pleading to authorize its introduction. This evidence was offered by the plaintiff in reply to the defense set up by the defendant, that he held this land under an oral contract by which the plaintiff gave it to him. This action of the plaintiff was in the nature of an oral replication to the defense set up by the defendant. In ordinary suits no replication shall be filed. ' Civil Code (1910), § 5647. In such-suits no special pleadings shall be admitted in the superior courts, and every case shall go to the jury and be tried upon the petition, process, and answer alone. §§ 5573, 5651. The superior court, exercising chancery jurisdiction, is authorized to require proper and sufficient pleadings, to be determined by rules applicable in equitable proceedings, in any claim or defense presented, and -to require sufficient notice of the pleadings provided for. § 5413. When new matter is set up by the defendant, not controverting the plaintiffs petition, the plaintiff, in proper cases, may be required by the court to meet the same by appropriate written pleadings. § 5633. By analogy, we think that in this summary proceeding plaintiff was not required to file any written replication to any defense set up by the defendant in his counter-affidavit. Clearly, in the absence of some request by the defendant to the court to require the plaintiff to file a written replication, the want of such replication is not ground for reversal. Central of Ga. Ry. Co. v. Tankersley, 133 Ga. 153 (2) (65 S. E. 367). So we do not think that the court erred in refusing to rule out the record in the former action because the plaintiff had failed to plead the judgment therein as an estoppel against the defense of the defendant set up in the amendment to his counter-affidavit.

Did the acceptance of rent by the plaintiff from the defendant, after suing out his warrant to dispossess the latter, estop the former from pressing this proceeding? It has been held that the receipt of rent by the landlord, after suing out a writ of forcible detainer, and up to the time of the trial, was not a waiver of a forfeiture of the lease previously declared. Cleve v. Mazzoni, 19 Ky. Law R. 201 (45 S. W. 88). The landlord could not, as owner, be barred from prosecuting a summary proceeding to eject his tenant holding over, on the theory that the acceptance of rent, after the expiration of the term of the tenancy, converted the tenancy into one from year to year. Whatever might be the effect of accepting rent for the period beyond the trial of such proceeding, clearly the taking of rent which had accrued would have no such effect. On this subject the Supreme Court of North Carolina has said: “As to the other phase of the defendants’ contention, i. e. that the acceptance of the rent for the time after the expiration of the term converted the tenancy into one from year to year, it may be said that there would be force in it if there had not been served in proper time a notice upon the defendants to vacate the premises and deliver possession at the end of the term. In an action to recover the possession of leased premises the plaintiff can recover damages for the occupation of the premises since the cessation of the estate of the lessee; and surely the plaintiff could receive it, by voluntary payment, without the effect of continuing the lease.” Vanderford v. Foreman, 129 N. C. 217 (39 S. E. 839). Tiffany says: “ The acceptance by the landlord of rent accruing subsequently to the expiration of the original term would ordinarily show, as against him, an extension of the tenancy as a periodic holding, and preclude the maintenance of the proceeding; but no such inference is to be drawn, it has been decided, from the acceptance of rent for the time during which the tenant may retain possession by reason of his having given a bond for appeal from a judgment of dispossession, or by reason of an injunction against the enforcement of such judgment.” 2 Tiffany’s Landlord and Tenant, § 274; Hopkins v. Holland, 84 Md. 84, 35 Atl. 11; Curd v. Farrar, 47 Iowa, 504.

Counsel for plaintiff in error relies on the ease of Guptill v. Macon Stone Supply Co., 140 Ga. 696 (79 S. E. 854, Ann. Cas. 1915A, 1249). In that case the warrant was sued out before the expiration of-the lease, on the ground of the tenant’s failure to pay rent. The tenant filed the statutory counter-affidavit. Afterwards the landlord accepted from the tenant rent that had accrued under the lease subsequently to the institution of the summary process. This court held: “ Such acceptance operated as a waiver of the landlord’s right to claim a forfeiture of the lease because of the tenant’s arrears prior to the issuance of the summary process.” This court further said: “ Having voluntarily elected to treat his tenant as no longer entitled to the possession, his course must he consistent with this claim in the further progress of the proceeding which he has instituted. If he receives rent accruing subsequently to the issuance of the dispossessory warrant, and accepts it as being a payment under the original lease contract, he affirms that the lease contract is still in existence. By his own acts he admits the continuance of the lease, and waives any prior forfeiture.” The décision in that case rested upon the fact that the conduct of the landlord was inconsistent. He was undertaking to enforce forfeiture of a lease because of the tenant’s failure to, pay rent which had accrued. Thereafter he accepted rent which had accrued after suing out the summary proceeding to dispossess the tenant. These acts were inconsistent. In the case at bar, there was no inconsistency on the part of the landlord in accepting rent which had accrued (although it became due after he had sued out his dispossessory warrant) and, at the same time, pressing his proceeding to dispossess the tenant. If he succeeded in his proceeding to dispossess the tenant, he would he entitled to double rent. The voluntary payment by the tenant of one half of this amount would not bar the landlord, by its acceptance, from proceeding to dispossess the tenant. He is entitled to both his rent and possession of his property. Acceptance of the former, which had accrued prior to the trial of the dispossessory warrant, would not estop him in his effort to obtain the latter.

The above rulings dispose of the other grounds of the motion for new trial, and render it unnecessary for us to deal with them in detail. Judgment affirmed.

All the Justices concur.