Kaufman v. Treadaway

149 S.E. 325, 40 Ga. App. 274, 1929 Ga. App. LEXIS 129

Opinion

Jenkins, P. J.

l.A statutory proceeding to evict one alleged to be in possession of lands as a tenant can not be maintained unless the relation of landlord and-tenant actually exists between the parties. McHan v. McHan, 39 Ga. App. 632 (147 S. E. 903); Edwards v. Blackshear, 24 Ga. App. 622 (101 S. E. 585); Collier v. Buice, 36 Ga. App. 198 (3) (136 S.E. 287).

Decided May 15, 1929. Rehearing denied August 24, 1929. M. B. Bubanlcs, for plaintiff in error. B. P: Treadaway, Willingham, Wright & Covington, contra.

2. “When title is shown in the plaintiff and occupation by the defendant, an obligation to pay rent is generally implied; but if the entry was not under the plaintiff, or if possession is adverse to him, no such implication arises.” Civil Code (1910), § 3692.

3. In the instant case there was no proof to establish the relation of landlord and tenant between the parties, but, on the contrary, the evidence showed, without dispute, that the defendant held the premises under a contract of rental with a person other than the plaintiff administrator or. his intestate. Accordingly, the court erred in directing a verdict for the plaintiff.

Judgment reversed.

Stephens and Bell, JJ., concur.