Cody v. Quarterman , 12 Ga. 386 ( 1853 )

By the Court.

Nisbet, J.

delivering the opinion.

[1.] The plaintiff below, in this action of ejectment, exhibited no muniments of title, but relied for recovery on his character of landlord to the defendant. That is, having as he claimed, proven that the -defendant came into possession derivatively under his lessee, he also claimed that the relation of landlord and tenant was established, and that he was entitled to recover upon the legal proposition, that a tenant is estopped from denying the title of his.landlord. Both parties agree as to the soundness of that proposition. Nor do we question but that he is entitled to recover upon the admission of title in him, which grows out of the relation of landlord and tenant, if according to the law applicable to the facts of the case, that relation did exist. The question made by the rule for a new trial, upon which the cause turns, is therefore this, to wit, was the relation of landlord and tenant made out by the proofs, in the judgment of the law upon those proofs ? The plaintiff in error in the rule and in the argument, insists that it was not, upon several grounds. The presiding Judge refusing the rule, denied these grounds. In his charge to the Jury, he instructed them that if they found that the tenancy existed remotely or directly in the defendant under the plaintiff, he (the plaintiff,) was entitled to recover. To find the facts, was of course the province of the Jury, and they were properly submitted to the Jury; but it was the duty of the Court to instruct as to the legal effect of the facts to be found. He gave no instruction as to the legal effect of the facts, and was therefore understood by them to rule that if the facts relied upon by the plaintiff below to establish the relation of landlord and tenant were found by them, then in Law, the relation was also made out.

The rule for the new trial, in its main ground denies that the facts, if true, created a tenancy in law in the defendant, under the plaintiff, and therefore claims that the verdict was contrary to law. The refusal to grant the rule, then, made up the issue between the presiding Judge and the plaintiff in error. We are to inquire, therefore, whether in the judgment of the law, upon the testimony which we find in the record, the relation of landlord and tenant was established. To determine this question, it is necessary to state first what was proven.

[2.] It was proven that the testator of the plaintiff, Michael T. Dawsey, a number of years before this suit was instituted, but the precise time not stated, by a verdal contract, leased the premises m dispute, to a man by the name of McGee, for five years, in consideration of the erection of a house upon them, who went into possession under the lease. He built the house, and died. How long he was in possession before his death, is not shown. The widow of McGee, at the death of her husband, was in possession, and continued in possession for eight months, when she intermermarried with Moira, who thus acquiring possession, sold what the witness called the unexpired lease, to Bandy. Bandy went into possession after his purchase from Moira, and conveyed the land to McIntyre, who died, and whose executor, Murchison, put the defendant Cody, into possession. There is other testimony to which I may advert; but the above statement contains the evidence upon which the plaintiff below relies, to establish the relation of landlord and tenant between the testator of the plaintiff, Dawsey, and the defendant. The counsel for the plaintiff in the action say, that having proven a lease from Dawsey to McGee, and traced the possession through McGee’s wife and Moira to Bandy, before the expiration of the lease, and from Bandy through McIntyre, to the defendant, the defendant was derivatively the tenant of Dawsey, and Dawsey his landlord. That is their case. That possession is traced by the evidence from McGee, through his wife, Moira, Bandy, and McIntyre to the defendant, is true; but that the possession thus traced, when the law is applied to its various stages, can be construed into a continuous tenancy under Dawsey, is what we are not able to affirm. As the tenancy of the defendant under Dawsey, in our judgment depends altogether upon the character of the lease, as it is called, from him to McGee, it is of primary importance to determine the character of that lease. The real question is determinable alone upon the nature of that lease, and the rules of law which are applicable. to its being, and its determination. It was a verbal lease, and for the definite period of five years. By the Statute of Frauds,all leasfes, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to or out of any messuages, manors; lands, tenements, or hereditaments, made or created by livery and seizin only, or by parol, and not put-in writing and signed by the parties so making or creating the same, or their agents, thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in Law or Equity, be deemed or taken to have any other or greater force or effect; any consideration for making any such parol leases or estates, or any former law or usage to the contrary notwithstanding.” Prince’s Dig. 914. By this section, all leases of land by parol are void ; and as this lease between Dawsey and McGee, was by parol, as a contract of lease of lands, it is void. The 2d section of the Statute of Frauds, excepts from the operation of the 1st section, <c all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the-landlord during such term, shall amount unto two-third parts at the least, -of the full -improved value of the thing demised.” Prince, 914. This lease does not come within the exception of the 2d section. First, because there is no evidence of the reservation of rent to the amount of two-third parts of the improved value of the premises. It is true, that the building of a house was the consideration proven for the lease, and it may be possible that this improvement was equivalent to two-thirds of the improved value of the land, yet there was no evidence to that effect. But secondly, this lease cannot be within the exception, because it was not a lease for a term not exceeding three years, it being proven that it was a lease for more than three, to wit, five years. Being void as a lease, what was it ? I answer, a tenancy at will; for the Statute declares, that a parol lease shall have the force and effect of a lease or estate at will only7. The construction which the Courts have put upon the estate at will thus created under the Statute, is that it is not in all respects such a tenancy at will, as may be created by contract between the parties. Driven to legislate, by the extreme hardships of the case, the Courts of Great Britain, before the era of American Independence, construed estates at will, becoming such under the Statute, to have the effect of tenancies from year to year, in order to protect the tenant from the consequences of a sudden determination of the estate by the landlord.

[3.] The decisions have gene the length of holding, that the tenant is entitled to notice to quit, and to emoluments; and that the landlord shall not loso his rent, by a determination of the estate within the year, on the part of the tenant. And further, that although an estate at will, outside of the Statute, was not assignable, yet an estate at will, by virtue of the Statute, may be assignable. 4 Kent’s Com. 112, 113, 114, 115. Preston on Abstracts of Title, vol. 2, p. 25. 3 Burrow, 1609. 8 Term R. 3. 2 Caine’s R. 169. 7 Johns. R. 4. 8 Cow. R. 75. Roberts on Frauds, 243, 244. So, also, although the agreement as to the lease be void, by the Statute, as to to its duration, and it is but a tenancy at will, yet in other respects, it regulates the terms on which the tenancy subsists; for example, as to the rent, the time of the year when the tenant is to quit, &c. Riggs vs. Bell, 5 Term, R. 471. Greenleaf’s Ev. vol. 1, §263.

Although a strict tenancy at will is not favored by the Courts, and by construction has lost many of the stringent peculiarities which originally characterized it, being apart from the Statute, generally held in effect, a tenancy from year to year, yet such an estate may still be created by the express agreement of the parties. 4 Taunt. R. 128. 5 B. and A. 604. 1 Bowl, and R. 272. 2 Black. 118, (note 7.)

[4.] The one peculiarity which I deem it needful especially to note in reference to this case, is, that estates at will determine by the death of the tenant. They are so determined, whether strictly an estate at will by agreement between the parties, or become such by the operation of the Statute of Frauds. The judicial construction which has given to the latter, for certain purposes, the effect of a tenancy from year to year, does not prevent this result. As to their determinable quality, by death, estates at will, under the Statute, are not affected by that construction. Blackstone, enumerating the different ways in which estates -at will are determined, says — “ or which is instar omnium the death or outlawry of either lessor or lessee.” 2 Black. Com. 146. 5 R. 116. Co. Litt. 57, 62.

By the death of McGee, the estate which he acquired from Dawsey was at an end, and could not devolve upon any one. As between him and his wife, or Moira and himself, or any other persons and himself, claiming the possession through Moira, there could be no privity. The relation between McGee and Dawsey, as landlord and tenant, ceased at McGee’s death, and if it existed afterwards between Dawsey and Moira, orbetween Dawsy and Bandy, it existed by virtue of a new contract, of which we find no evidence in the record. These things being so, the defendant, who went in under the vendee of Bandy, cannot be the tenant of Dawsey; as between him and Dawsey the relation of landlord and tenant did not exist, and he was not estopped from setting up title to the land, through other persons.

Now,Gt is true, that McGee’s tenancy at will, being by construction, a tenancy from year to year, according to the decisions, could determine only at the end of the year. Leighton vs. Leed, 1 Ld. Raym. 707. Doe vs. Snowden, 2 Wm. Blackstone’s R. 1224. Doe vs. Porter, 3 T. R. 13. Porter vs. Constable, 3 Wils. 25. Wright vs. Darley, 1 T. R. 159. 4 Kent’s Com. 112. See, also, the very learned discussion of the doctrine relative to estates at will, in the opinion of Judge Putnam, in the case of Ellis vs. Paige, (2 Pick. R. p. 71, note.) At the death of the tenant, therefore, within the year, the interest in the tenancy continues to the end of the year; and it may be said that this interest, at the death of McGee, continuing for the balance of the year in which he died, passed to his wife ; and that she became thereby tenant to her husband’s lessor, Dawsey; and further, that Moira, intermarrying with her, by the marital right, acquired the unexpired term, and thereby became tenant to Dawsey; and he selling the unexpired term to Bandy, he, Bandy, under whom the defendant acquired possession, became tenant to Dawsey. To which I answer, that at the death of McGee, the interest in the lease for the balance of the year in which he died, did not, by law, devolve upon his widow, but passed , to his legal representatives. Shore vs. Porter, 3 T. R. 13. She could only acquire it by will, or by due course of administration, and there is no evidence of a will, or of an administration. It is proven simply, that she held possession after his death, until she married Moira, eight months after his death. There was, therefore, no legal succession/of the lease to her. She came into possession without lawful right. She acquired no property in McGee’s lease, and Moira could acquire none, by his marrriage with her.

He very clearly went into possession as a tort feasor, and did not own the unexpired lease, which the witness says he sold to Bandy. Neither'Moira, therefore, nor Bandy, occupied the relalion of tenant to.Dawsey. Between them and McGee, the lessee of Dawsey, there was no privity. Besides, the evidence is altogether too indefinite to warrant the conclusion, that when Moira married McGee’s widow, any portion of an unexpired year from McGee’s death remained; or that when he sold to Bandy any portion of it remained. When McGee died, is not proven; and it is proven that his widow was in possession eight months after his death, before . she married Moira. He may have died at the beginning, middle, or close of the year •, and if either of the twro last suppositions be true, the conclusion as above is impossible.. The most reasonable presumption is, that her eight months of possession exhausted the year, and that there was no unexpired portion of it remaining, when Moira married her. When he sold to Bandy, is not proven. It does not appear how long, after he married Mrs. McGee, he held possession before he sold to Bandy. To make the position tenable, that Bandy came into possession derivatively from McGee, through Moira, it ought to appear affirmatively that McGee’s lease was unexpired when he bought from Móira. I rest, however, with entire confidence, upon the legal position, that at the death, of McGee, no interest whatever, in an unexpired term of one year vested in his wife, and that Moira acquired none by marriage.

It was argued, in behalf of the plaintiff in error, that from the evidence, the tenancy of McGee was determined by the entry of Dawsey, before Bandy bought of Moira, and that he (Dawsey) sold the property to Bandy, and therefore, neither Bandy nor those claiming under him, could be the tenants of Dawsey. This conclusion, so far as the facts are necessary to it, is drawn inferentially from the evidence. It is proven that Dawsey was in possession in 1836 ; that about that time, Bandy had left the State for Florida, where he remained some time; that before 1836, he had claimed the land; that after his return, he brought suit against Dawsey for it; which remaining'on the calendar for several terms, was discontinued, and shortly thereafter, Bandy was in possession, and sold to McIntyre, whose executorputthe defendant into possession. From these facts, counsel infer, that in 1836, Dawsey determined the tenancy of McGee by entering; and thus it was impossible for any one claiming under McGee, to be his tenant. They infer, too, from the possession of Dawsey, in 1836, the pendency of the suit in favor of Bandy against him for the land, its discontinuance and the subsequent possession of Bandy, that the controversy between Dawsey and Bandy, about the land, was settled by a sale from Dawsey to Bandy of the fee ; and upon these inferences, they conclude that, as between Bandy and Dawsey, there could be no relation of landlord and tenant, and of course, none between the defendant and Dawsey. The facts were, as to these things, properly submitted to the Jury tor their finding. I can only say, that if found according to the inferences of the counsel, then the law arising upon them would be, as the counsel claim it to be. that is : that Dawsey’s entry would terminate any previous tenancies; and a sale of a fee to Bandy, would enable the defendant, claiming under him, to set up title under him, against Dawsey. The facts are not so clearly, by any means, proven, as to enable us to say, applying the rules of law to them, that on these last grounds the verdict was contrary to lawn

It was argued for the defendant in error, that Moira was re« cognized by Dawsey, as his tenant, and therefore, the relation of landlord and tenant existed between them. The only evidence of this, is the statement of the witness, that Moira sold the unexpired lease to Bandy. If to this recognition of McGee’s lease, and his (Moira’s) ho]ding under him, by Moira, were added Dawsey’s recognition of him as tenant, then, clearly, the relation would have existed. The evidence shows no such recognition by Dawsey. And it is not possible for one man to make himself the tenant of another, by entering on his premises, and selling to a third person what he calls an unexpired lease. The assent of the owner to the tenancy, must appear before it can be assumed that the relation of landlord and tenant exists between him and the tenant.

We think that, according to the facts expressly proven, the relation of landlord and tenant did not exist between the plaintiff below and the defendant; and that on that account, the verdict was contrary to law, and a new trial ought to have been granted.