Lowther v. Patton

165 S.E. 487, 45 Ga. App. 543, 1932 Ga. App. LEXIS 608

• Court: Court of Appeals of Georgia
• Decided: September 1, 1932
• Docket: 22114
• Status: Published

Opinion

Hooper, J.

1. “Where all right, title, and interest of an owner of land has been divested by a sale made pursuant to a power of sale given by him in a deed to the land to secure a debt, and he thereafter remains in possession, he is a tenant at sufferance of the purchaser, and, as such, may be summarily dispossessed, as provided in section 5385 of the Civil Code of 1910.” Anderson v. Watkins, 42 Ga. App. 319 (156 S. E. 43), and cit. The request to overrule the case just cited, which is largely controlling in the instant case, is denied.

Decided September 1, 1932. E. F. Goodrum, for plaintiff in error. Charles C. Slone, Earl W. Butler, contra.

2. The affidavit in this casé, made pursuant to section 5385 of the Civil Code of 1910, alleged facts showing a tenancy at sufferance, and therefore the motion to dismiss the proceedings, based upon alleged absence of relationship of landlord and tenant, was properly denied.

3. Although one ground of the counter-affidavit was based upon an alleged contract for the sale of the land, entered into between the grantor and the grantee in the loan deed, subsequent to the foreclosure, the evidence failed to establish any such binding contract between the parties, based on a legal consideration. Even had such a contract been established, it appears from the defendant’s own testimony that he was unable to comply therewith. This ground of the counter-affidavit was, therefore, not supported by the evidence.

4. The trial judge did not err in directing a verdict for the plaintiff or in overruling the motion for a new trial, based only on the general grounds and amplifications thereof.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.