From Casetext: Smarter Legal Research

Roberts v. Graham

Court of Appeals of Georgia
Sep 24, 1958
105 S.E.2d 801 (Ga. Ct. App. 1958)

Opinion

37327.

DECIDED SEPTEMBER 24, 1958. REHEARING DENIED OCTOBER 9, 1958.

Dispossessory proceeding. Bibb Civil Court. Before Judge Butler. July 9, 1958.

W. George Thomas, for plaintiff in error.

Adams, O'Neal Steele, H. T. O'Neal, Jr., contra.


The finding of the trial judge, sitting without a jury, was demanded by the evidence and all legitimate deductions that might be drawn therefrom.

DECIDED SEPTEMBER 24, 1958 — REHEARING DENIED OCTOBER 9, 1958.


Mabel Graham Roberts and J. W. Graham were formerly husband and wife. Three children were born as a result of this marriage, Sandra, Sheila, and Diane Graham. These children are all minors. Mabel Graham Roberts is the plaintiff in error in this appeal and her three minor children are the defendants in error. Their father, J. W. Graham, is not a party litigant but appears only in his capacity as guardian of the minor children.

In January 1957, Mabel Graham Roberts and J. W. Graham came to a parting of the ways. A divorce was contemplated and the parties entered into a contract settling all questions of alimony, support, property, and custody as between themselves. At the time of the execution of the contract J. W. Graham was the fee-simple owner of a house and lot in Macon, Georgia. The contract prescribed that he was to convey this house and lot to the three minor children by a proper quitclaim deed. The contract likewise provided that the mother, Mabel Graham Roberts, was to have custody of the three minor children. The contract further provided that Mabel Graham Roberts as well as the children could use the house for a residence. J. W. Graham proceeded in the Superior Court of Bibb County for a divorce and the same was granted. The contract between the parties was also made a part of the judgment and decree of the court in the divorce case. In accordance with what has been said above the quitclaim deed was executed by J. W. Graham conveying the fee-simple title to the three minor children. Mabel Graham Roberts and the children commenced living in the house, with J. W. Graham taking up residence elsewhere.

Six months after the completion of the divorce in January 1957, J. W. Graham brought a petition for the writ of habeas corpus alleging a change in condition of the children, and this case was tried in August, 1957. This trial resulted in a judgment awarding the three children to their father, J. W. Graham. Following the rendition of the judgment in this custody case, J. W. Graham was also appointed legal guardian of the three minor children by appropriate proceedings in the Court of Ordinary of Bibb County, Georgia.

Subsequent to the aforesaid custody transaction the plaintiff in error, Mabel Graham Roberts, continued to occupy the premises in question. In December, 1957, she married one Johnny Oscar Roberts. That marriage is evinced by a marriage license which appears in the record in this case. Johnny Oscar Roberts moved into the residence in question and commenced living there.

The three minor children acting through their guardian sought to dispossess Mabel Graham Roberts and Johnny Oscar Roberts from the premises in question. They were, however, unsuccessful.

Sandra, Sheila, and Diane Graham, acting through their guardian, again gave legal notice to the plaintiff in error to vacate the premises in question. This notice notified the plaintiff in error that her status as a tenant at will was being terminated in terms of law by the fee-simple owners of the property. When the notice given by the children had run its course and the plaintiff in error had failed and refused to vacate the premises, a dispossessory proceeding was brought by them through their guardian in the Civil Court of Bibb County in order to obtain possession of their home. The plaintiff in error filed her counter-affidavit and gave bond, thus retaining possession of the premises.

By agreement of all parties and counsel concerned a trial by jury was waived. The case came on for trial before the Honorable Earl W. Butler, Judge of the Civil Court of Bibb County, Georgia, sitting without the intervention of a jury. After all the evidence was in, the trial judge rendered a judgment in favor of the defendants in error. This judgment, finding in substance that the plaintiff in error was a tenant at will subject to dispossession upon proper notice, is of record in its entirety. Subsequent to this judgment of the court, a writ of possession issued. Prior to the actual execution of the writ of possession by the sheriff, the plaintiff in error filed a motion for new trial and a supersedeas bond. This procedure left her in possession of the disputed premises and she retains such possession through the present time.

The motion for new trial was subsequently heard and denied. This case is now before this court upon a writ of error excepting to the order of the trial judge refusing to grant a new trial.


The defendant in the trial court, plaintiff in error here, contends that she was not a tenant of the children in whose behalf the dispossessory warrant proceedings were instituted and that she was entitled to possession of the premises when the warrant issued. If the evidence submitted upon the trial made an issue as to whether either of these contentions was correct, the trial judge erred in finding against her.

Nothing is better settled than that the existence of the relationship of landlord and tenant is essential to the employment of dispossessory warrant proceedings to oust another from the occupancy of real estate. Price v. Bloodworth, 55 Ga. App. 268 ( 189 S.E. 925). Where the parties at the time the demand for the possession is made are tenants in common, one having title and the other the right to occupy a part of the premises, as in the case of Marshall v. Cozart, 94 Ga. App. 614 ( 95 S.E.2d 729), neither of the tenants in common can legally obtain a dispossessory warrant for the removal of the other.

The solution of the issues made by the defendant's contentions depends upon the construction of the contract and deed set out in the foregoing statement of fact, both of which were sustained by the decree of the superior court judge.

The deed conveyed the title to the house and lot to the children. The contract vested in the defendant in the present case a usufruct, the right to occupy and use the house and lot as a dwelling. The limitation placed by the contract was that her use of the house for the purpose of a dwelling was to be enjoyed jointly with the children. The relationship of the children and the defendant was then tenants in common of the house and lot.

The contract did not give the defendant the right to occupy the house and lot to the exclusion of the children or under such circumstances that the joint occupancy by her and the children could not be reasonably maintained. The children were by the decree in the divorce case placed in the defendant's custody. It was obviously the intention of the parties to the contract that the house and lot serve as a dwelling for the defendant and the children while she had custody of them. By the judgment of a court of competent jurisdiction, the children were taken from the defendant's custody and placed in the custody of their father. The contract did not contemplate and it was not the intention of the parties to the same that the defendant occupy the house and lot to the exclusion of the children.

The record shows that the children are of tender years and that the defendant had married another man after obtaining a divorce from their father, with whom she was living in the house.

The defendant could not require the children to dwell in the house with her, and the conditions under which she had the right to occupy the same ceased. The title was still in the children. The plaintiff insists the defendant was a tenant at will under the definition of Code § 61-104.

In these circumstances the demand for possession of the premises ordinarily necessary under Code § 61-301 to the institution of dispossessory warrant proceedings was given.

We are constrained to hold that when the demand was made the defendant had ceased to be a tenant in common with the children and occupied the relationship to them of landlord and tenant.

The evidence adduced upon the trial, considered together with the defendant's counter-affidavit, demanded the finding of the trial judge.

Judgment affirmed. Felton, C. J., and Nichols, J., concur.


Summaries of

Roberts v. Graham

Court of Appeals of Georgia
Sep 24, 1958
105 S.E.2d 801 (Ga. Ct. App. 1958)
Case details for

Roberts v. Graham

Case Details

Full title:ROBERTS v. GRAHAM, Guardian

Court:Court of Appeals of Georgia

Date published: Sep 24, 1958

Citations

105 S.E.2d 801 (Ga. Ct. App. 1958)
105 S.E.2d 801

Citing Cases

Adams v. Wright

Marsha Adams had set forth no facts in her pleadings or affidavit in opposition to Wright's motion for…