Opinion
32912, 32920.
DECIDED JUNE 7, 1950. REHEARING DENIED JULY 7, 1950.
Dispossessory warrant; from Sumter Superior Court — Judge Gower. November 30, 1939.
Charles Burgamy, R. L. Maynard, for plaintiff.
H. L. Jackson, Fort Fort, S. H. Dykes, for defendant.
1. While it is the general rule that a tenant may not, without first surrendering possession, dispute the title of the landlord under whom he entered, the rule is otherwise where "a transmission of title from the landlord ensues by operation of law or under legal process, as where the landlord dies or the land is levied on and sold under execution against him."
( a) The decree which was admitted in evidence having been entered in a proceeding in which the present plaintiff contended that the present defendant's deceased husband was her tenant and owed her certain rents on the land now occupied by the defendant widow and sole heir at law, and in which he set up title in himself through a city tax sale, and the court there having found as a matter of law that title was in him, subject to a certain deed to secure debt, but that prior to acquiring title he was the plaintiff's tenant, submitting to the jury the question of the amount of rent due by him, such decree, which was accompanied by the pleadings in the case, was not inadmissible on the ground that a tenant may not dispute the title of the landlord without first surrendering possession or for any other reason assigned.
2. "Upon the loss of any original petition, answer, declaration, plea, bill of indictment, special presentment, or other office paper, a copy may be established instanter on motion." Code, § 63-201. Accordingly, the court did not err in admitting in evidence the record establishing lost pleadings in litigation in the same court, and in which the decree mentioned in the preceding headnote was entered, over the plaintiff's objection that no notice of the application to establish the record had been given her at that time.
( a) The principle enunciated in cases like Cleghorn v. Johnson, 69 Ga. 369 and Wimberly v. Mansfield, 70 Ga. 783 (2), that notice to the opposite party is necessary where an application to establish a lost paper, which is in connection with a muniment of title, is made in another court than that wherein such muniment of title is to be used, is not applicable here.
3. Aside from the fact that the movant did not insist upon her motion to amend the said decree, the failure of the court to rule upon the motion was harmless, inasmuch as it was without merit for reasons stated in the opinion, infra.
4. The court did not err in refusing to exclude the decree adjudicating title in the defendant's deceased husband in litigation between the plaintiff and himself, over objections which relate to matters which were urged or could have been urged in that litigation, and the decree not having been appealed from, the plaintiff is concluded thereby as to her contentions.
5. The court did not err in directing a verdict for the defendant.
DECIDED JUNE 7, 1950. REHEARING DENIED JULY 7, 1950.
STATEMENT OF FACTS BY WORRILL, J.
The present case was before this court in Salter v. Salter, 80 Ga. App. 263 ( 55 S.E.2d 868), the facts being there stated as follows: "Mrs. Josephine Salter, plaintiff in the trial court and plaintiff in error here, brought a dispossessory proceeding against Mrs. A. B. Salter (the widow of her deceased son, Arthur B. Salter) on the single ground of non-payment of rent. By amendment she alleged that she had, on February 9, 1911, deeded the property in question to her son, A. B. Salter, reserving therein a life estate to herself; that in 1931 she rented the premises to A. B. Salter; that the tenant did not pay the rent; that in 1940 she brought a dispossessory action against him; that the judgment of the court in that proceeding was that he was the plaintiff's tenant and could not dispute her title while retaining possession of the premises, and that there was owing to the plaintiff at that time $240 back rent, that this judgment was paid by A. B. Salter; that he continued to occupy the premises as tenant thereafter; that he promised to pay rent but did not do so; that he died on January 19, 1949, and his widow, Mrs. A. B. Salter, has continued the occupancy of the premises, but that she refuses to pay rent though demand has been made. The defendant filed a counter-affidavit and bond, denying that she was the plaintiff's tenant." After stating the evidence for the plaintiff, the report continues: "The defendant testified that she was living in the premises, that she was administratrix of her husband's estate, and that she was paying no rent. The defendant then offered in evidence a copy of a verdict and decree, dated June, 1942, in which A. B. Salter was the plaintiff and Mrs. Josephine Salter the principal defendant, and the trial court admitted the same over the plaintiff's objection on the ground that the pleadings in the case were not attached thereto. The verdict read, `We, the jury, find for the defendant Mrs. Josephine Salter for the sum of $5 per month rent for four years, a total of $240.' The decree continued: `It is therefore considered, ordered and decreed that the fee-simple title and right of possession to the property hereinafter described be, and the same is hereby in A. B. Salter. . . Further ordered that the defendant, Mrs. Josephine Salter, do have and recover of the plaintiff, A. B. Salter, the principal sum of $240 as rent [with interest]. . . It further appearing that the plaintiff A. B. Salter borrowed certain money and executed a note thereon together with a security deed conveying the premises . . which note and security deed has been transferred and assigned to Mrs. Josephine Salter . . it is decreed that the said property be, and the same is hereby subject to said security deed and judgment is rendered for said amount and for rents due and the indebtedness due on said security deed are hereby decreed to be superior liens and the title to said property is decreed to be in said A. B. Salter subject to said claims.'"
This court, in reviewing the judgment overruling the plaintiff's motion for new trial, held that it was reversible error to receive in evidence the decree of June, 1942, without the record on which it was based. Thereafter in the trial court the plaintiff amended her affidavit by asserting that the sale of the property by the city marshal on April 6, 1938, was illegal and void for reasons not necessary to be stated here. The defendant's demurrer to this amendment was overruled, and exceptions pendente lite were duly filed.
When the case came on for trial there was testimony on behalf of both parties which, in the view of the case by this court in considering the assignment of errors it is unnecessary to set forth. The plaintiff introduced in evidence the deed of February 9, 1911, which she had executed to her son, A. B. Salter, conveying the property in question with reservation of a life estate in herself, a letter from her counsel to the defendant, dated March 6, 1949, demanding rent from January 19, 1949, to March 19, 1949, and a letter from the said counsel to the defendant, dated April 6, 1949, demanding possession of the property because of non-payment of rent.
The defendant introduced in evidence her petition to establish in the Superior Court of Sumter County certain lost pleadings in the case which terminated in a decree on June 29, 1942, hereinbefore referred to, copies of these pleadings being attached to the petition, and the order of the court establishing the said pleadings as originals and as shown by exhibits attached to the petition to establish. The defendant also introduced the decree of June 29, 1942. The established petition by A. B. Salter, the present defendant's deceased husband, named as defendants Mrs. Josephine Salter, Mrs. Otis M. Physioc, her daughter, and W. P. McArthur, sheriff of Sumter County, and alleged, among other things, the following: The execution and delivery of the aforesaid deed of February 9, 1911. The mother's allowing him to occupy the property for seven years without being liable for any rent and no demand for any. The sale of the property on April 5, 1938, under a city tax execution, bought in by one W. R. Drane, the deed, while undertaking to convey the fee, conveying in law only the life estate of Mrs. Josephine Salter. The acquisition on April 3, 1939, by A. B. Salter of a quit-claim deed to the property from Mrs. W. R. Drane, the widow and sole heir of the said W. R. Drane, then deceased. Notice on October 21, 1939, in compliance with the statute, to Mrs. Josephine Salter that her right to redeem the property would be foreclosed in 45 days thereafter, unless she redeemed the property in the meantime. Her failure to redeem the property, and the title becoming absolute on December 6, 1939. The demand on July 15, 1940, by Mrs. Otis M. Physioc, daughter of Mrs. Josephine Salter and for whom she acted, of rent from A. B. Salter at $25 per month, payable in advance, informing him that he would be allowed until August 1, 1940, to raise the money. The refusal of A. B. Salter to accede to the demand and the issuance, on August 5, 1940, of dispossessory proceedings against him, as well as a distress warrant for $1200. His inability to give the necessary bond to stay the proceedings. The allegation that the relation of landlord and tenant did not exist at the time the proceedings were instituted, and that unless the defendant sheriff were restrained the petitioner and his family would be dispossessed. The prayers were: (a) that the proceedings be enjoined; (b) that the sheriff be enjoined from dispossessing the petitioner and his family or from levying the distress warrant; (c) that on the final hearing title to the property be decreed to be absolutely and in fee simple in the petitioner; (d) for process; and (e) for general relief.
The answer of the defendants in that proceeding denied the material allegations of the petition, except that they admitted the execution of the deed of February 9, 1911, and that A. B. Salter and Mrs. Otis M. Physioc were the only children of Mrs. Josephine Salter, that Mrs. Physioc gave A. B. Salter notice to pay rent or vacate, and that the said dispossessory warrant issued. They further set up the following: The said A. B. Salter is indebted to his mother, Mrs. Josephine Salter, for four years rent on the property, the reasonable, fair and market value of which is $25 per month, and the said Salter has been holding the property as tenant of his mother for more than four years, has never paid any taxes or rent though often requested so to do by his mother. The said A. B. Salter executed a deed to secure debt in favor of the Citizens Bank of Americus for a consideration of $100, out of which money he is supposed to have paid Mrs. W. R. Drane $82.70 to redeem the property, but has not paid the bank one dollar of the money borrowed for this purpose and his mother and his sister are now paying off the debt to protect the interest of Mrs. Josephine Salter. The said A. B. Salter fraudulently procured Mrs. W. R. Drane to make the deed to him as grantee when in equity and good conscience his mother should have been named grantee, and the said deed is void for the reasons alleged. The right of possession, use and enjoyment of the property in dispute are in Mrs. Josephine Salter. The consideration expressed in the deed from Mrs. W. R. Drane has never been paid by A. B. Salter and is now being paid monthly by Mrs. Josephine Salter and Mrs. Physioc. The deed from the city marshal, dated April 6, 1938, is void because of excessive levy. The whole transaction is a fraudulent scheme on the part of A. B. Salter to deprive his mother of the property by permitting the same to be sold for taxes, bidding in the same, and while a tenant undertaking in this way to dispute his landlord's title, though he has never vacated the premises for the purpose of setting up an adverse claim. The prayers were: 1. That the restraining order be dissolved. 2. That the deed from Mrs. W. R. Drane to A. B. Salter be declared void. 3. That the right of possession, use and enjoyment of the premises be decreed to be in Mrs. Josephine Salter. 4. That Mrs. Josephine Salter have judgment against A. B. Salter for $1200 for rent of the premises. 5. For general relief.
Attached to the petition for establishing the papers was a certificate from the clerk of the court that the copies of the petition and answer attached to the petition to establish were correct copies according to the writ record of the court and that the originals were lost, mislaid or destroyed and that he had made a diligent search to find the same.
The decree of the court was as follows: "The within petition of Mrs. A. B. Salter being a petition to establish certain lost office papers, to wit, the petition filed by A. B. Salter in this court against Mrs. Josephine Salter, Mrs. Otis M. Physioc and W. P. McArthur, sheriff, which petition was filed on August 7, 1940, and the answer filed by Mrs. Josephine Salter to said petition on August 27, 1940, coming on to be heard and it satisfactorily appearing to the court that the originals are lost and that the copies hereto attached are true and correct copies of said lost office papers, it is ordered that said copies be and they are hereby established in lieu of the lost originals. This the 21st day of November, 1940."
The decree of June 29, 1942, introduced in evidence has been set out hereinbefore.
The plaintiff introduced in evidence an excerpt from the testimony of A. B. Salter on a former trial of the case, as follows: "I redeemed it by paying the money. Up until that time there had not been a single soul to say anything to me about rent. After I redeemed it that was the first time the question of rent was brought up."
The plaintiff also tendered in evidence paragraph one of the amended motion for new trial in 1941 made by A. B. Salter and which was approved and filed on March 7, 1942, and also the records of newspapers from the clerk's office showing the dates on which advertisements of the sale of the property appeared, being March 10, 17, 24 and 31, 1938.
The defendant introduced in evidence the quitclaim deed from Mrs. W. R. Drane, dated April 3, 1939, conveying the property in dispute to A. B. Salter, the same being duly recorded.
The plaintiff and the defendant introduced, respectively, certain records and papers in connection with the sale of the property for taxes, but a description of the same is not deemed necessary.
Upon the conclusion of the evidence the court directed a verdict for the defendant. The plaintiff excepted, and the assignments of error in the bill of exceptions are dealt with in the opinion hereinafter.
The defendant, by cross-bill of exceptions, assigned error on the judgment overruling her demurrer to the amendment filed by the plaintiff under date of November 21, 1949.
1. Error is assigned on the admission in evidence of the decree dated June 29, 1942 upon the grounds: 1. It was irrelevant and immaterial to any issue in the case, the only issue being tenancy or no tenancy, and title not being involved. 2. It allowed the tenant to dispute the title of the landlord without first surrendering possession. 3. It was not accompanied by the entire record in the case, since the brief of evidence and the charge of the court were not put in evidence. 4. The decree was ambiguous and inconsistent, it being shown that the jury found that the defendant was liable to the plaintiff for rent in the sum of $240 and the court held that the title and right of possession were in A. B. Salter, and the decree could not be construed, whereas it should have conformed to the verdict of the jury which necessarily found that the defendant A. B. Salter was the tenant of Mrs. Josephine Salter.
It is the general rule that a tenant may not dispute the title of his landlord without first surrendering possession. Code, § 61-107; Grizzard v. Roberts, 110 Ga. 41 (2) ( 35 S.E. 291); Johnson v. Thrower, 117 Ga. 1007 (3) ( 44 S.E. 846); Consolidated Realty Inv. Inc. v. Gasque, 203 Ga. 790, 799 ( 48 S.E.2d 510). The rule is otherwise where "a transmission of title from the landlord ensues by operation of law or under legal process, as where the landlord dies or the land is levied on and sold under execution against him. In such cases the tenant's attornment to the person acquiring his landlord's right is perfectly consistent with the maxim that the tenant cannot dispute his landlord's title." Powell on Actions for Land, p. 435, § 369. See also Raines v. Hindman, 136 Ga. 450 ( 71 S.E. 738); Hines v. Lavant, 158 Ga. 336 (3, 3-a) ( 123 S.E. 611). It is shown by the established pleadings which were before the court and jury that in the case in which the decree of June 29, 1942, was entered Mrs. Josephine Salter on July 15, 1940, brought dispossessory proceedings against A. B. Salter, and that he filed a petition in the Superior Court of Sumter County setting up that he had acquired title to the property in dispute by a quitclaim deed from Mrs. W. R. Drane, the widow and sole heir of her deceased husband, W. R. Drane, who purchased the property at a tax sale, that he had served notice on Mrs. Josephine Salter on October 21, 1939, that her right to redeem the property would be foreclosed within 45 days from the date of notice and that she did not redeem, and that the title in him became absolute on December 6, 1939. He prayed, among other things, that the title be decreed to be in him absolutely. A clear-cut issue was thus made as to whether or not A. B. Salter acquired title on December 6, 1939, though he may have been a tenant theretofore and the decree of the court established that he had become the title holder through a tax sale, thereby enabling him to dispute the title of one under whom he had originally entered into possession.
The objections that the decree was inadmissible because not accompanied with the brief of the evidence and the charge of the court and it was ambiguous and inconsistent are also without merit. It was correctly held by this court on its former appearance that "it was therefore error for the court to allow in evidence the copy of the decree of June, 1942, without the record on which it was based." On the last trial this requirement was fully met. The petition and the answer established by petition to the court clearly showed the issues which were finally adjudicated by the decree, to determine which the brief of the evidence and the charge of the court were wholly unnecessary. By reading these pleadings in connection with the decree it can readily be ascertained that the court found as a matter of law that title became vested absolutely in A. B. Salter on December 6, 1939, subject to a described security deed, but that prior to such date he was a tenant of Mrs. Josephine Salter. The question of the amount of rent was not determined by the court but was referred to a jury and a verdict was returned in the sum of $240. The decree is not, as contended by the plaintiff in error, one which is illegal in not conforming to the verdict of the jury. It is one in which the finding of the court as to title and the finding of the jury, under the pleadings, are entirely consistent.
2. Error is assigned on the admission in evidence of the record of the proceedings to establish the lost pleadings, making issues on which the decree of June 29, 1942, was based, the ground of objection being that the plaintiff in error, Mrs. Josephine Salter, was not served with notice of the proceedings. It is provided by the Code, § 63-201, that "Upon the loss of any original petition, answer, declaration, plea, bill of indictment, special presentment, or other office paper, a copy may be established instanter on motion." See also Saunders v. Smith, 3 Ga. 121 (7); Eagle Phenix Mfg. Co. v. Bradford, 57 Ga. 249 (1); Beall v. Patterson, 146 Ga. 233 (1) ( 91 S.E. 71); Southern Fertilizer Chemical Co. v. Kirby, 52 Ga. App. 688 (1) ( 184 S.E. 363). The established pleadings were such as had been filed in the court in which the decree of June 29, 1942, was rendered and were certified by the clerk as being in accordance with the writ record. Aside from this they are presumed to be correct when established on motion. Morris v. Ogle, 56 Ga. 592 (3); Southern Fertilizer and Chemical Co. v. Kirby, supra. They were not papers which were established in a different court and then sought to be availed of in the trial court here. Therefore, the principle that notice to the opposite party is necessary where an application to establish a lost paper, which is in connection with a muniment of title, is made in another court than that wherein such muniment of title is to be used is not applicable here. For such cases see Cleghorn v. Johnson, 69 Ga. 369; Wimberly v. Mansfield, 70 Ga. 783 (2); Cosnahan v. Rowland, 99 Ga. 285 ( 25 S.E. 647); Allen v. Lindsey, 113 Ga. 521 ( 38 S.E. 975); Selph v. Selph, 136 Ga. 740 (1) ( 72 S.E. 31).
(3) Error is assigned upon the failure of the court to rule upon the written motion of the plaintiff in error to amend and reform the decree of June 29, 1942, to make it conform to the verdict of the jury for $240 rent to be paid to Mrs. Josephine Salter. In addition to the fact that it does not appear that the motion was insisted upon, the failure of the court to rule upon it was not harmful error, since, as we have shown hereinabove, the decree was appropriate to the issues in the case and was not ambiguous or inconsistent. In connection with the pleadings it affords a ready construction that title was decreed in A. B. Salter as of December 6, 1939, prior to which time he was a tenant of Mrs. Josephine Salter and owned rent in the sum of $240. This decree was not appealed from, so far as the record shows, and was a final adjudication that the title was in A. B. Salter, subject to a deed to secure debt as therein mentioned.
4. Error is assigned on the refusal of the court to exclude the decree of June 29, 1942, on the ground that A. B. Salter's title was based on an illegal sale in connection with which certain documentary evidence was introduced, it being asserted that proper legal notice of the sale was not given, that the taxes on account of the alleged non-payment of which the sale was made had in fact been paid, and that tender to redeem the property was made to the grantor in the quitclaim deed to A. B. Salter before its execution. These are all matters which were urged or could have been urged in the proceeding in which the decree was rendered, and it not having been appealed from the question of title has been finally and conclusively adjudicated. By the act of 1949 (Ga. L. 1949, p. 1132) it is provided in section 2-A that "Any tax deed regularly executed at a valid and legal sale held by the State or any subdivision thereof, including counties and municipalities, when the defendant in fi. fa. is sui juris, shall after the expiration of seven years from the date of said tax deed convey fee simple title and title to the property described in said tax deed shall vest absolutely in the grantee therein or his heirs or assigns. In the event the defendant in fi. fa. is laboring under any legal disability, then the prescriptive term of seven years shall begin from the time the said disabilities are removed or abate." In section 2-B it is provided: "That any title under any tax deed that has been executed for seven years prior to the passage of this Act and approved thereof by the Governor shall be deemed to have ripened by prescription, provided, that the defendant in fi. fa. under which any property has been sold, or his assigns, or any person having any right, title or interest in or lien upon said property, may have twelve months from the date of the approval of this Act by the Governor to redeem any property that he may have had a right to redeem under the Act of the General Assembly of Georgia, as contained in the Georgia Laws 1937, pages 491 to 496 inclusive, on the date of the approval of this Act, by the Governor and if no such proceedings have been commenced within twelve months from the date of approval of this Act by the Governor then all rights of all persons to redeem said property shall be forever barred." This act was approved on February 25, 1949. The plaintiff in error refers to the provision that the defendant in fi. fa. may, under the circumstances stated, have twelve months from the date of the approval of the act by the Governor in which to redeem property sold under a tax deed, and that as the date of approval was February 25, 1949, she had until February 25, 1950, to redeem the property in question. It is shown by the record, however, that on October 21, 1939, she was afforded an opportunity to redeem when she was notified, in accordance with the Code (Ann.), § 92-8306, that her right to redeem would be foreclosed in 45 days thereafter, but that she did not redeem, and that her right to redeem became foreclosed on December 6, 1939. Hence, she does not now stand as one who "had a right to redeem under the Act of the General Assembly of Georgia, as contained in the Georgia Laws 1937, pages 491 to 496 inclusive, on the date of the approval of this Act," and who might redeem within twelve months from February 25, 1949, under the act of 1949, supra.
5. Because of what is said above the direction of the verdict in favor of the defendant was fully authorized, and the assignment of error in this respect is without merit.
Judgment affirmed on the main bill of exceptions. Cross-bill of exceptions dismissed. Sutton, C. J., and Felton, J., concur.