Crawford v. Cathey

Evans, P. J.

(After stating the foregoing facts.) Courts do not make contracts for parties. Where a written contract is plain and unambiguous, it is' the only evidence of what the parties intended and understood by it. No issue is raised in the pleadings that the written contract did not express the intention and purpose of the parties to it. The rights of the parties primarily depend upon a construction of their contract as creating the relation of vendor and vendee or that of landlord and tenant. It seems to be a rule of all but universal application that a provision in an instrument of lease, giving the lessee an .option to purchase the reversion in the premises should he so desire, in no way affects the relation of landlord and tenant, or the latter’s liability for rent. 2 Tiffany’s Landlord and Tenant, § 256. The parties designated their contract as one of- lease. They expressly stipulated that the lessor should have all the rights and remedies provided for landlords under the laws of this State. The consideration of the five annual payments was the right to occupy and use the land. The-parties seem to have been careful that the relation of landlord and tenant should not be converted into that of vendor and vendee, pending the continuance of the lease contract. An option to purchase was given to the lessee at the end of his tenancy, upon condition that he had made his annual payments and performed his obligations in terms of the contract. A contract very similar to this was before the court in Clifford v. Gressinger, 96 Ga. 789 (22 S. E. 399). In that case it was held, that, upon the tenant’s failure to pay the stipulated rent for any year when it became due, it was the right of the landlord to sue out a warrant under the code for his summary ejection, and also to distrain for the rent. We think the ruling in that case compels a construction that the contract between the parties in this case was a lease with an option to buy, and that the landlord was entitled to enforce the collection of his rent by distress warrant.

Counsel for the defendant in error, in their brief, place great reliance on the case of Lytle v. Scottish American Mortgage Company, 122 Ga. 458 (50 S. E. 402), as demanding a construction that the contract in this case created the relation of vendor and vendee. In the Lytle case the parties thereto characterized their contract as a "land contract.” That contract called for ten payments aggregating $1,260, designated as purchase-money, and ten payments aggregating $2,750, designated as rental, and provided that upon the payment of these sums conveyances in fee should be executed; and it was held that such contract created the relation of vendor and vendee, and not that of lessor and lessee. The distinction between the contract in that ease and the one under consideration is obvious. In the former the person contracting for the land contracted to pay a certain amount as purchase-money and a certain amount as rent, and, after obtaining possession, made payments of both purchase-money and rent installments. The landowner claimed a forfeiture on account of a failure to make these payments under the terms of the contract, and the issues in that case revolved around the effort to declare a forfeiture. In the instant case, according to the contract, no money was contracted to be paid to the landlord as purchase-money. The tenant was given an option to buy at the expiration of the lease contract. On the interlocutory hearing no evidence was introduced except the written contract between the parties, and the case was heard upon this evidence and the pleadings. The plaintiff in error having the right to enforce his claim of rent against the tenant by distress warrant, it was error, in the absence of any other equitable consideration, to enjoin its enforcement.

Judgment reversed.

All the Justices concur, except Fish, G. J., absent.