Lamar v. Sheppard , 84 Ga. 561 ( 1890 )

Bleckley, Chief Justice.

The main question in the case is whether rents paid by Mrs. Lamar to Sheppard, during the first year after the tax sale at which Sheppard purchased, can now be treated as having been paid towards redeeming the premises, so as to supplement the amount of cash tendered in that year for the purpose of effecting redemption. For aught that appears, both parties acted upon the bona fide belief that Sheppard was entitled to the rents for that year. He exacted them if at all as matter of right, and Mrs. Lamar paid them voluntarily and without any claim that they should be treated as paid otherwise than in virtue of the relation of landlord, and tenant. She recognized that relation and acted upon it. Moreover, she did not pay in cash but in labor, and very probably, if she had offered to redeem the property in labor, the offer would not have been acceptable. It was her legal right to occupy the premises during the first year after the tax sale without paying rent, and no doubt she agreed to pay and did pay in ignorance of law. But there is no evidence that Sheppard was not equally ignorant 'of law in receiving payment. ■ Under these circumstances it is doubtful whether the rents could be recovered hack, had they been paid in cash. Code, §3121. But grant that they could be recovered back, it does not follow that the law would arbitrarily apply them to effectuate the right of redemption, when neither of the parties had any such application in view at the time of the transaction, and when the right to make such application was never claimed until after the time for redemption had expired. Furthermore, to treat the property as redeemed by these rents together with the tender made of a less amount than was due would not put the parties in statu quo. For Sheppard, supposing himself to be the absolute owner, has made improvements on the property, and there is no offer to account or pay for these improvements as a means of protecting him against loss. How could the law now take hold of these rents and apply them differently from what the parties themselves intended when they were paid and received, no claim for such application having been made until it was too late to insist upon the right of redemption? •Certainly there was no strict legal redemption, and in order to substitute therefor an equitable redemption, it should be done on conditions which would be equitable to both pai’ties. One of these conditions, it seems to us; would necessarily involve compensating Sheppard for his improvements. It does not appear that any claim for the rents to be so applied was set up before the improvements were made. In Jones v. Johnson, 60 Ga. 260, the question of applying the rents to redemption was raised and the right insisted upon before the period for redemption had expired. Here the sale was in July, 1883, and the question was made at the trial for the first time. Even the bill, which was filed in June, 1887, does not set up this claim for application of the rents. It alleges nothing to that effect, but avers tender of the money within the twelve months, and repeats and continues the tender, thereby admitting that the whole amount remained unpaid when the bill was filed. It seeks a decree for some rents alleged to have been collected by Sheppard, but does not intimate that they should be used to supplement the cash tendered so as to raise the tender to the requisite amount. According to the bill, the amount tendered was sufficient without help from any rents whatsoever.

2. As to the two tenders relied upon, one made by Mrs. Lamar and thé other by Harris at the request of Lamar himself, neither of them, according to the evidence, was sufficient in amount to effect redemption, the sum paid at the tax sale being $15.00 and the ten per cent, premium thereon amounting to $1.50, raising the aggregate to $16.50. Neither of these parties tendered more than $15, nor did either of them have at the time more than $16. If Sheppard said it would lake $50, that would have excused the production of the money, had the person making the tender been possessed of as much as $16.50 that could have beén produced. But we see not how it could render a tender of $15 or even $16 sufficient, when $16.50 was the amount required to redeem according to law. What the property brought at the tax sale was no secret in the keeping of Sheppard, and it is not suggested that Mrs. Lamar or Harris was dependent upon him for information as to that fact. They seem to have known it. But what they did not know, or did not regard if they had knowledge of it, was their legal duty to tender ten per cent, premium in addition to the $15. They simply undertook to make a tender without being prepared to comply with the law, and it cannot be said to have been the duty of Sheppard to aid them by calling their attention to his legal rights. It does hot appear that they were deterred from tendering $1.50 more than they did tender by his declaration, if he made it, that it would require $50. They, knowing what the property brought at the sale, should have ascertained for themselves how much would redeem it, and should have made a tender of that amount. To tender a less amount was the same as lüaking no tender at all. Code, §2478.

8. In the affidavit for a warrant to evict a tenant holding over, the amount of rent due and unpaid need not be specified. The grounds of the warrant are failure to pay overdue rent and refusal to surrender possession on demand. These facts being sworn to, the warrant may issue. Code, §4077.

4. That the warrant was issued by the county judge and made returnable to the county court, would not divest the superior court of jurisdiction to try and determine the issue made by the counter-affidavit. The code, §4080, expressly declares that the proceeding shall be returned to the superior court for trial by a special jury. This is the direction given by the statute, and the officer could obey it notwithstanding the direction in the warrant making it returnable to the county-court. Even if the county court had jurisdiction by virtue of §295 of the code, the superior court certainly had jurisdiction also, and that the warrant was actually returned to the latter court was enough to justify the exercise of the jurisdiction.

There was no error in refusing to grant a new trial.

Judgment affirmed.