Walker v. Wadley

52 S.E. 904, 124 Ga. 275, 1905 Ga. LEXIS 702

Opinion

EvaNS, J.

(After stating the facts.) 1. The lease, the provisions of which appear in the foregoing statement of facts, bound the lessor for the term of ten years, at the election of the lessee. The term was absolute for the first year, and upon the lessee giving the stipulated notice of his acceptance of the option to.extend the term four years from January 1, 1901, the lease contract became binding on both parties for that period of time. If there was any irregularity in giving the notice to Wm. Jones Walker, as agent for the lessor, instead of to the lessor herself, such irregularity was waived by the subsequent recognition on the part of the lessor of the continuance of the lease. The extended term of four years was not a new demise, but only an extension of the term of the lease from one to five'years according to its express provisions.

2. Therefore the covenant against the assignment of the lease or subletting related not only to the first year’s existence of the lease, but was likewise coextensive with the continuance of the lease. Manifestly it was the intention of the contracting parties that the same covenants were to be binding during the continuance of the lease, save as to the amount of rental to be paid, whether its existence continued one, five, or ten years. Corporation of the London Assurance v. Paterson, 106 Ga. 538; Taylor’s Land. & Ten. §332.

3. The lease being made to Wadley, his executors and administrators, it was clearly the right of his administratrix to continue in poossession of the leased premises as long as, under the law, she was authorized to continue his business, which was until the expiration of the current year of his death. Civil Code, §3436. By accepting rent paid by the administratrix under the terms of the lease for the year 1901, the lessor recognized her as a tenant lawfully in possession thereunder for the additional term of four years therein provided for. So, unless the administratrix committéd a breach of the covenants upon which the lease was made, the lessor was estopped from claiming that she was a mere intruder. That she did commit a breach of the covenant against assigning the lease or subletting is evident; for after the lessor had positively declined to give assent to the assignment of the lease to Daniel Sons & Palmer, the ad-ministratrix turned over the possession of the plantation to that firm upon the understanding that it was to be run in her name, but for its benefit, in order that effect might be given to the written assignment of the lease which she and the other heirs of the estate had executed. This transaction was colorable, was concealed from the lessor, and was in direct violation of the covenant against subletting. A violation of this covenant could only be avoided by the operation of the plantation by the administratrix in person or through authorized agents for the benefit of the estate she represented. She could not accomplish by indirection what the lease expressly forbade her to do without the assent of the lessor. Indeed the defendants’ plea practically admitted the breach of covenant, and their defense was that there had been a waiver of this breach on the part of the plaintiff.

4. The lessor was not informed or apprised of the assignment of the lease by the heirs of Wadley to Daniel Sons & Palmer until after the institution of her suit. She “believed from Daniel Sons & Palmer’s apparent connection with the place that some arrangement had been made by the administratrix with them, which it was hoped by them would have the same effect as an assignment, but that such assignment sought nominally to preserve the lease to the estateand certain facts “induced plaintiff to believe that the- ad-ministratrix, if not directly or in form, had assigned to Daniel Sons & Palmer some interest in the lease, and in her alleged right of possession under the same, if not her entire interest, . . and that it was entered into in pursuance of an attempt or scheme to evade what plaintiff claims was the law and the express terms of the contract.” Entertaining such suspicions and inferences, she gave notice that the lease had become forfeited because of the violation of the covenant against subletting. The lessor admits that the facts of which she had 'knowledge raised the inference that this covenant of the lease had been violated. With such knowledge, and after giving notice insisting upon a forfeiture of the lease, she, in the fall of 1902, accepted rent tendered under the provisions of the contract. When the administratrix sent to the lessor the money contracted .to be paid, upon the express condition that it was to be accepted as rent pursuant to the terms of the contract, if this condition was not satisfactory to the lessor, she should either have returned the money to the administratrix of Wadley or have notified her that she held the same subject to her order. Jenkins v. National Assn., 111 Ga. 732. The lessor could not apply the money tendered in pursuance of the contract as rent to a claim which she asserted independently of the contract. Her retention of the money under these circumstances was equivalent to its acceptance under 'the provisions of the contract, as rent from a tenant lawfully in possession of the premises, notwithstanding the disclaimer of the tenant’s right of possession made in the receipt which the lessor sent to the administratrix. Acceptance by the lessor of rent accruing after the breach.of a covenant, with knowledge thereof, amounts to a waiver of a forfeiture resulting from that particular breach. Taylor’s Land. & Ten. §’499. And where rent is payable annually, the acceptance of the same with knowledge by the lessor that there has been- a breach of covenant during the previous year and before the accrual of the rent which is tendered, is to he regarded as a waiver of that breach of the covenant. But where the lessor is ignorant of an assignment of the lease for the full term of the tenancy, acceptance of the rent with knowledge limited to inferences drawn from facts which give no information as to the existence of a written assignment of the lease for the full term will not extend the waiver to the full period of the term covered by the lease assigned. ' When the rent for 1902 was tendered, the admitted facts justify the inference that the lessor knew that the covenant against subletting had been violated during the years 1900, 1901, and 1902. For the violation of the covenant during these years, her acceptance of the rent with knowledge of such violation was a waiver of the forfeiture for such breaches. “When, however, there is a continuing cause of forfeiture, the landlord will not be precluded from taking advantage of it by receiving rent which accrued after the breach was originally committed.” Taylor’s Land. & Ten. §500. Tims, when the lessee’s administratrix continued to allow Daniel Sons & Palmer to remain in possession of the land and operate the farm imder the assignment of the lease by the heirs of her intestate, •there was a continuing breach, and the acceptance of rent by the lessor only waived the right to forfeit the lease for such breaches as ■occurred prior to-the accrual of the rent of which she had knowl■edge. When the lessor notified the administratrix of Wadley in March, 1903, that she claimed a forfeiture because of the violation •of the covenant against assignment or subletting, then, after the •expiration of the time stipulated in the contract, the lease became ■forfeited by reason of the violation of that covenant, and the lessor •could sue for possession. This she did in a few days; and under •the admitted facts, she was entitled to maintain her action from that time. It was therefore erroneous for the court, upon the .agreed statement of facts, to render judgment for the defendants.

5. A waiver of a breach of covenant may be pleaded in bar to an .action brought by the lessor against the lessee and his assignee to jrecover possession of the premises because of an alleged forfeiture ■of the lease growing out of such breach of covenant. So much of •the plea as set up this defense should not have been stricken. But ■the establishment of this defense would not entitle the lessee or his .assignee to be reimbursed for expenses incurred in making valuable .and permanent improvements on the land during their occupancy ■of the same. Hence so much of the plea as sought to recover a money judgment against the plaintiff should have been stricken on •demurrer.

6. .The code provides (Civil Code, §5104) that when two or more persons are sued in the same action, either on a contract or for a ■tort, the plaintiff may amend his declaration by striking out one or more of such defendants and proceed against the remaining defendant or defendants, if there is no legal difficulty in the way. The pleadings in the present case do not suggest any legal difficulty to the elimination of the administratrix of Wadley from the case. She has not prayed any relief to which she is entitled, either against the plaintiff or her codefendants; and as the plaintiff brought her into court, the plaintiff should be allowed to discontinue the case as to her by having her name stricken from the petition, the plain-iiff taking whatever risk to her case that may result to her by the exercise of this statutory right. Coston v. Coston, 66 Ga. 382. The court should have allowed the amendment striking the name of Mrs. Wadley, as administratrix, as a party defendant.

Judgment reversed.

All the Justices concur.