Mizell v. Byington

The petition set out a cause of action against both defendants, and the court erred in dismissing it on general demurrer.

DECIDED JUNE 13, 1946. In March, 1945, Oscar Mizell and his wife, Ollie Mizell, filed an action in damages for trespass against W. C. Byington and his wife, Laura E. Byington. The petition as amended (formal parts omitted) contained the following allegations: The petitioners and the defendants were in 1934 residents of the State of Texas and were close and intimate friends, and such relationship continued until the defendants moved to Georgia in 1941. From the time of such removal and until April 7, 1944, the defendants carried on with petitioners a voluminous and friendly correspondence by mail, in which they urged petitioners to move to Georgia; and, as a consideration for their leaving Texas and moving to Georgia, the defendants offered to give the petitioners a home in Georgia, free of rent; and finally, on March 7, 1944, in order to induce the petitioners to so remove their home, the defendants delivered to them a written instrument conveying to petitioners the right to live in and occupy a six-room house, together with out-houses and four acres of land, and the use of a pasture, for as long as the petitioners, or either of them, lived upon the property. The written instrument was attached to the petition as exhibit "A" and reads as follows: "Newnan, Ga., Coweta County, March 7, 1944. To whom it may concern: This is to certify that I, W. C. Byington, do hereby grant and convey to Oscar Mizell and wife Ollie Mizell, without rent or any other dues whatsoever, one six-room house, with all out-houses, and four acres of land to be laid off according to their choosing. Also the use of my pasture for such cattle as they wish. This agreement and contract is to continue as long as either of them lives on the place. [signed] W. C. Byington." The petitioners show that, while said instrument was not signed by Laura E. Byington, she was the joint owner with her husband of said land and knew of and consented to it, and was fully informed of and acquiesced in said arrangement, and together with her husband persuaded and procured the petitioners to move to Georgia because of such conveyance to them. Your petitioners show that as a result of that conveyance, and in consequence thereof, they left Texas and moved to Georgia at a great sacrifice and expense, and on April 7, 1944 went into possession and occupied the premises, described in the written instrument. The petitioners show that they have a 19 year old daughter, who moved with them from Texas and lived with them in Georgia; that W. C. Byington, on or about September 1, 1944, when he and said daughter were alone together, made improper remarks and advances toward her and attempted to suggest the beginning of immoral relations between them. Said daughter resented such misconduct and reported it to her mother, and her mother reported it to Laura E. Byington; that soon after said report to Mrs. Byington the defendants ordered the petitioners to move off the premises, but they refused to do so; that also, soon after said report, W. C. Byington executed and had recorded a warranty deed conveying to his wife, Laura E. Byington, certain real estate containing that portion upon which the petitioners were living; that because of said report to Mrs. Byington of her husband's misconduct, the two defendants conspired together to wrongfully dispossess and evict the petitioners from their home and, in furtherance of their conspiracy, W. C. Byington executed and had recorded a deed conveying the property in question to Laura E. Byington, and then, in order to carry out and fully effectuate their conspiracy, she, on October 30, 1944, had issued a dispossessory warrant to dispossess the petitioners of said premises, the defendants knowing at the time of the petitioners' inability to give the required bond in such a case; that, on November 4, 1944, because of such inability, they were dispossessed of their property, forcibly and against their will, all of their furniture, wares and goods being removed from the house and placed in the public road, and their cows, hogs and chickens being removed from the premises; that the defendants knew that the petitioners were entitled to possession of said premises, and their dispossession thereof was malicious and constituted an aggravated trespass against their right of possession; that the petitioners had not breached any contract with defendants, and that they were entitled, at the time of their eviction, to the possession of the premises for as long a period as they desired to live thereon; that when the petitioners moved on the premises they did so for the purpose and with the intent to live thereon for the balance of their lives; that the reasonable yearly rental value of the dispossessed property was $250, and that their malicious eviction therefrom has resulted in special damages to them in the sum of $4222.50; that, as a result of said eviction, the petitioners were thrown into a highly nervous condition and were greatly humiliated in the presence of their friends and neighbors and, because of such humiliation and embarrassment, were damaged in an additional sum of $2000 as vindictive damages; that as the result of such malicious eviction, petitioners also suffered general damages in the amount of $2500.

Each defendant filed a separate demurrer to the petition containing general and special grounds. The court, without passing on the special grounds of the two demurrers, sustained the general grounds thereof and dismissed the case; and that judgment is assigned as error in the bill of exceptions. The only questions here presented are whether the petition set out a cause of action against W. C. Byington, and whether it set out a cause of action against Laura E. Byington.

It is well settled that where a petition is attacked by a general demurrer, the demurrer admits as true all the facts set forth in the petition; and that the demurrer should be overruled if any part of the petition presents a cause of action against the named defendant. The instant petition, properly construed, presents an action in tort by the plaintiffs to recover damages resulting from their alleged unlawful, forcible and malicious eviction, by the defendants, from premises to which they, at the time of their eviction, had the right of possession. "A malicious and forcible eviction of the tenant by the landlord, although under a warrant to dispossess regularly issued, where the tenant has not breached the contract of rental and is entitled to possession of the rented premises, and this is known to the landlord, [and] where the tenant does not arrest the proceedings by counter-affidavit because of inability to give the required bond, and there has been no suit which terminated in favor of the tenant, constitutes a trespass against the tenant's right to possession, for which the tenant has a cause of action sounding in tort against the landlord. . . While the petition in this case, which is a suit by a tenant against the landlord to recover damages for a malicious and forcible eviction of the plaintiff by the defendant under a warrant to dispossess not resisted by counter-affidavit, in which it is alleged that the plaintiff had not violated the contract of rental but was entitled to remain in possession under the contract, may fail to allege a cause of action for a malicious use of process, in that it does not appear that the suit terminated favorably to the plaintiff, nevertheless it alleges a cause of action for a trespass against the plaintiff's right of possession. The court, therefore, erred in dismissing the petition, on motion in the nature of a general demurrer." Hall v. John Hancock Mut. Life Ins. Co., 50 Ga. App. 625 (1, 3) (179 S.E. 183). "The bare right to possession of lands shall authorize their recovery by the owner of such right, and also damages for the withholding of the right." Code, § 105-1402. A petition, alleging rightful possession of land and illegal interference therewith, is good against a general demurrer. Daniel v. Perkins Logging Co., 9 Ga. App. 842 (72 S.E. 438). "The bare possession of land shall authorize the possessor to recover damages from any person who shall wrongfully, in any manner, interfere with such possession." Code, § 105-1403.

The defendants contend, however, that the petition is fatally defective because it fails to show any consideration for the right of the petitioners to possess the land in question. It is true that the above-quoted written instrument is silent as to any consideration, but the other facts and allegations of the petition supply that deficiency and show ample consideration for the grant by the defendants to the plaintiffs to occupy and live on the land. Where a written contract for any interest in lands fails to show the consideration therefor, the consideration may be shown by oral evidence. Baldwin v. McLendon, 170 Ga. 437 (1), 439 (153 S.E. 18).

In our opinion, the petition set out a cause of action against both defendants, and the court erred in dismissing it on the general demurrers.

Judgment reversed. MacIntyre and Gardner, JJ., concur.