Scott v. Berry

46 Ga. 394

• Court: Supreme Court of Georgia
• Decided: July 15, 1872
• Status: Published

Opinion

Montgomery, Judge.

> It is true that no one but a landlord may distrain for rent: 3 Blackstone’s Commentaries, 6, n.; therefore, the holder, as such, of a rent note cannot; but it is not true that only the owner of the fee can be a landlord. A lease is an estate and may be assigned: Garner vs. Byard, 23 Georgia Reports, 291. Hence, a tenant may sub-let; and, as to the sub-tenant, he is the landlord — that he takes a rent note, payable to the owner of the fee or bearer, is not inconsistent with the idea of a sub-lease. For aught that appears by this record, Berry was the original lessee of the Trentlen plantation, and he in turn sub-let to Scott. If such were not the fact, the issue should have been raised by the counter-affidavit and the proof submitted to a jury, or perhaps the proof might have been made upon the usual counter-affidavit. The motion to dismiss assumes that it appears by the record that Berry is not Scott’s landlord. It only appears that he is not owner of the land rented.

Judgment affirmed.