Opinion
14174.
JUNE 19, 1942.
Equitable petition. Before Judge Jackson. Greene superior court. March 18, 1942.
Tolnas Middlebrooks, for plaintiff.
Joseph G. Faust, for defendants.
Where the petition shows that the relation of landlord and tenant exists between the parties, the issuance of a warrant to dispossess the tenant will not be enjoined. The rule that a tenant while in possession can not set up a title to the rented premises in opposition to that of his landlord is applicable although at the time the rent contract was made the tenant was in possession, claiming title to the premises. A suit by the tenant to cancel a deed conveying the premises to the landlord is an attack upon the title of the landlord, and is inhibited by the foregoing rule. The tenant is also thereby estopped to assert title acquired by him during such tenancy, while retaining possession.
No. 14174. JUNE 19, 1942.
The petition of Frank Barnett, against E. Lloyd Lewis, F. C. George, and L. L. Wyatt as sheriff, alleges that the plaintiff is the owner in fee simple of a described tract of land containing 100 acres; that defendants Lewis and George are the plaintiffs in an execution issued upon a judgment in their favor against Miles Walker Lewis as administrator of the estate of Mollie Barnett; that on November 4, 1941, L. L. Wyatt, sheriff, levied the execution upon the land which the plaintiff claims and which is described in the petition; that defendants Lewis and George were the purchasers at the sale held under the execution in December, 1941, and the sheriff executed a deed conveying said land to them; that the administrator, the defendant in fi. fa., was appointed by the court of ordinary of Greene County without legal right or authority; that his appointment and qualification were void, because he alleged in his petition for appointment that he was the choice of the next of kin and creditors, which allegation as to next of kin was untrue, and if there were any creditors of the deceased they had no authority to choose an administrator; that the petitioner had no notice of the pendency of the application for administration, or of the suit against the administrator which resulted in the judgment and execution referred to; and that Lewis and George are preparing to sue out a dispossessory warrant or other proceedings against petitioner, unless restrained from so doing by order of the court. In paragraph 7 of the petition it is alleged that petitioner has been in possession of the land for many years, and holds the same by independent title and not under the defendants, but it is further alleged that on "the first Tuesday in November, 1940, said defendants, E. Lloyd Lewis and F. C. George, after having become the purchasers of said property at a sale held under a purported power of sale, represented to petitioner that they had the legal title to said property, and induced petitioner to execute a rent note to them for said property, at which time petitioner was already in possession of said property." It is further alleged, that neither the petitioner nor the defendants had acted upon or performed any part of the contract evidenced by said rent note; that the defendants had no title to the property, and, recognizing the invalidity of the rent note and that they had no title, they immediately instituted the administration proceedings and suit for the purpose of dispossessing petitioner and defeating his title to the land. The plaintiff alleges that because of poverty he is unable to give the bond required of him to defend against dispossessory proceedings, and that he will sustain irreparable damage if his family is dispossessed and deprived of the use and enjoyment of the premises. The prayers were, for cancellation of the sheriff's deed. for injunction restraining further proceedings to enforce the execution and the suing out of a dispossessory warrant against the petitioner, and for general relief. By amendment the petitioner alleges that he has been in continuous and uninterrupted possession since 1922, which possession has been public, exclusive, peaceable, and under a claim of right; and that he has made thereon valuable improvements requiring the expenditure of $245 for a new roof on the dwelling and $25 for erecting a barn. Also, that Mollie Barnett died in 1928, leaving as her only heirs at law Roosevelt, Clifford, Grady, Eddie L., and Zepherine Barnett, who have conveyed whatever interest, if any, they may have had in said premises by deeds, copies of which are attached, dated December 8, 1941. They recite a consideration of $1, name Frank Barnett as grantee, and convey the premises described in the petition. To the petition as amended the defendants filed general and special demurrers. On March 8, 1942, judgment was rendered sustaining the general demurrer and dismissing the action. On the same date, after a hearing, judgment was entered dissolving a previous restraining order and refusing an injunction. The plaintiff excepted.
The amended petition seeks injunctive relief and cancellation of a deed. Both constitute disputes of the title of defendants Lewis and George. The entire amended petition immediately encounters the long-established and well-recognized principle of law found in the Code, § 61-107, which declares: "The tenant may not dispute his landlord's title nor attorn to another claimant while in possession." This rule estops the tenant from disputing his landlord's title so long as he is in possession. It does not prevent him from attacking the title of his former landlord, but requires as a prerequisite to such attack that he surrender possession. Newton v. Beckom, 33 Ga. 163 (3). In Ronaldson v. Tabor, 43 Ga. 230, it was said: "No principle of the law is of more solid and comprehensive justice than this — none which invokes a stricter and more rigid enforcement at the hands of courts. The tenant, or his assignee, upon every principle of justice and law, must not attorn to another nor set up in himself a title in conflict with his landlord's while in possession of his property." The petition contains an admission by the plaintiff that in 1940 he recognized defendants Lewis and George as the owners of the land involved; and that he executed to them a rent note, thereby constituting them his landlord and him their tenant; and asserts that he was then in possession and has since that time remained in possession of the premises. This admission establishes conclusively the relationship of landlord and tenant, with the plaintiff's possession that of such tenant. The other averments, as to the defendants' want of title, that they induced the plaintiff to execute the rent note, refute, or even alter the fact that the plaintiff thereby became the tenant and his possession thereupon became possession as tenant of the defendants as his landlord. In Grizzard v. Roberts, 110 Ga. 41 ( 35 S.E. 291), this court quoted with approval from 1 Wood on Landlord and Tenant, § 232, as follows: "It is a well-settled general rule, that a lessee can not deny the title of his landlord; and this rule applies whether the tenant was in possession before the lease was made or not. So long as he remains in undisturbed possession he is estopped from attacking the title under which he entered, unless his entry was induced by the fraud of the landlord or by a mistake in the execution of the lease, or unless the lease was made for purposes in violation of law. . . The fact that the lease is void, or that the lessor had not title whatever, or that the title was really in the lessee, and he was ignorant of the fact when the lease was made, will not change the rule." Under the rule just quoted the tenant may attack his landlord's title while still in possession, if he was induced to enter as tenant by fraud of the landlord, or by a mistake in the execution of the lease, or if the lease was made for a purpose in violation of law. The amended petition here shows no mistake in the execution of the rent note, no purpose in making the note which was a violation of law, and no fraud on the part of the landlord which induced the plaintiff to execute the rent note. As stated above, the fact that the lease is void, or that the lessor had no title, or even if the lessee had title and was ignorant of the fact, will not alter the rule. The most that can be said for the averments of the present petition is that the rent note was void, the payees therein had no title, and the plaintiff was at the time already in possession claiming title. No fraud is charged. Therefore, aside from other observations that may properly be made as to Tison v. Yawn, 15 Ga. 491 (60 Am. D. 708), on which the plaintiff relies, it has no applications to the facts in the present case. It was said: "If the attornment of the tenant is superinduced by the misrepresentations of the landlord as to his title, the tenant will not be estopped by it." After announcing this rule the court went on to say that as to the defect in the landlord's title this was distinctly mentioned to the tenants, and "so that there was neither the suppression of truth, nor the suggestion of falsehood, respecting the matter." The present petition alleges that Lewis and George were the purchasers of the property at a sale, and thereafter stated that they had legal title to the property. Instead of a misrepresentation, this shows a true representation, in that it stated the procedure by which they acquired title and nowhere disputes that their title was procured by the procedure recited. Although such a sale might not have vested in the purchasers a valid title, indeed if they acquired no title whatever thereby; the tenant, having recognized them as owners and having acquired possession as a tenant, is estopped to question their title so long as he remains in possession. In Grizzard v. Roberts, supra, it was said: "The possession of realty by a tenant is the possession of the landlord (that is to say, of the one who as landlord put him in); and it is a well-recognized principle, and one resting on the plainest principles of right, that a tenant is estopped from denying the title of his landlord." The court then quoted with approval from 2 Taylor on Landlord and Tenant, § 705, as follows: "If a tenant has once recognized the title of the plaintiff, and treated him as his landlord, by accepting a lease from him, or the like, he is precluded from showing that the plaintiff had no title at the time the lease was granted. . . A tenant shall never be permitted to controvert his landlord's title, or set up against him a title acquired by himself during his tenancy, which is hostile in its character to that which he acknowledged in accepting the demise." It was held in Johnson v. Thrower, 117 Ga. 1007 (3) ( 44 S.E. 846), that the rule prohibiting a tenant from disputing his landlord's title while in possession was applicable where the tenant was in possession and claiming title to the premises at the time the rent contract was made. Supporting this general rule, see Burnett v. Rich, 45 Ga. 211; Tufts v. DuBignon, 61 Ga. 322; Grizzle v. Gaddis, 75 Ga. 350; Beckham v. Maples, 95 Ga. 773 ( 22 S.E. 894); Willis v. Harrell, 118 Ga. 906 ( 45 S.E. 794); Hester v. Keen, 141 Ga. 832 (2) ( 82 S.E. 250); Vada Naval Stores Co. v. Sapp, 148 Ga. 677 ( 98 S.E. 79); Bryant v. Towns, 177 Ga. 571 (2) ( 170 S.E. 669); Brinkley v. Newell, 188 Ga. 678 ( 4 S.E.2d 827). The amended petition showing that the plaintiff has never surrendered possession since entering as the tenant of the defendants, no right to any relief sought is shown, and the petition was subject to general demurrer. For the reasons above stated we reject the contention that the decision in Brown v. Bonds, 125 Ga. 833 ( 54 S.E. 933), would sustain the petition, the effort to cancel being plainly an attack upon the title of the landlord.
By the amendment the petitioner seeks to set forth title acquired subsequently to the time when he entered possession as tenant under the rent contract in 1940. Whether or not the deeds attached to the amendment would show any title whatever, the petitioner is estopped from asserting that title without having surrendered possession. Williams v. Garrison, 29 Ga. 503.
Judgment affirmed. All the justices concur.