Watters v. Hertz

Fish, C. J. (After stating the facts.) The court did not err in overruling the objections urged by the defendant to the amendment to the plaintiff’s petition. It will be seen that this amendment first added two numbered paragraphs to the .original petition, and then added thereto a separate, independent,’ and separately paragraphed count, whereby the petition as amended contained two ■counts, the first of which was the original petition enlarged by the two additional paragraphs above referred to, and the second of which was the new count set forth in the amendment. The objection that the amendment to the first count “should not be allowed, for the reason that it [shows] no privity or contractual relation between Eebecca Hertz and Allie W. Watters,” was without merit. The original petition, while not drawn with such precision of statement as to clearly and aptly set forth the evident purpose for which it was brought, and while containing matter which, relatively to such purpose, was entirely superfluous, was, when properly construed, simply a petition for the recovery from the defendant of a described tract of land, and the rental thereof; the possession of which land he had held under the plaintiff for a given purpose; ■and which, after this purpose had been accomplished, he refused to surrender to her. While there were statements in the original peti [810] tion to the effect that the defendant had, by purchasing from Doss all his rights and interest under the contract which he had with the plaintiff, and by receiving and enjoying the same with the plaintiff’s consent or acquiescence, become bound to carry out the obligations to the plaintiff which Doss had undertaken under the contract, the plaintiff did not declare upon this contract and was not seeking to recover upon it, and such allegations formed no essential part of the cause of action which was really set up in the petition. They were mere surplusage and should be so treated. It matters not whether there was any direct contractual relation between the plaintiff and the defendant. If Doss, by contract with the plaintiff, procured from her the right to take possession of the land in question, for the purpose of cutting and removing the timber and cord-wood therefrom, and transferred such right to Watters, and Watters entered upon the land, with the plaintiff’s consent or acquiescence, under the contract which Doss had made with her, and, when the purpose for which Watters had thus obtained possession of the land. had been fully accomplished, he refused to surrender the possession to the plaintiff, she had a right to recover the land from him, whether he had any direct contractual relation with her or not. The petition set forth a suit, in the nature of an action of complaint for land, to recover the particular tract of land described therein. The contract or contracts between Doss and the plaintiff and the purchase by Watters of the rights of Doss under the same, were apparently set forth for the purpose of showing how, upon what terms, and for what purpose Watters took possession of the land, and that he held under the plaintiff through Doss, and was bound, just as Doss would have been, to surrender this possession to her when the term for which he was to have possession had ended. From the petition it appears that this term was indefinite when the contract was entered into, and was to be measured by the time consumed in accomplishing the purpose for which the possession was taken under the contract, and it ended when the timber and cord-wood had been cut and removed from the land. The objection to the allowance of the second count of the petition, set up in the amendment thereto, “upon the ground that the law of an undisclosed principal has no application in the case of a contract under seal,” was not well taken,- for the simple and sufficient reason that the contract as set forth in this separate and inde [811] pendent count of the petition is not under seal. According to the written instrument set forth in this count and the allegations as to performance by the plaintiff, the contract is not a specialty, but a simple contract, signed by one of the parties to this action only, and accepted and performed by the other. This separate and independent count can neither be aided nor impaired by reading into it something which appears only in the preceding count. See Pate v. Allison, 114 Ga. 651 (2), 653 (40 S. E. 715). As already indicated, the general demurrer was properly overruled. The petition set forth a cause of action for the recovery of the possession of the land in question from the defendant. If he entered into possession of the land under and by virtue of the contract between the plaintiff and Doss, as set forth in the first count of the amended petition, by having purchased from Doss all his rights thereunder, for the purpose of cutting and removing the timber and cord-wood therefrom, he could not, without first surrendering the possession thus obtained from the plaintiff, dispute her title. The well-established principle, that a tenant can not dispute his landlord’s title while he retains the possession acquired from the latter, applies with equal force as between a licensee and his licenser. Bigelow on Estoppel (5th ed.), 542; 24 Cyc. 943. It was so decided by the Court of King’s Bench in 1835, in Doe d. Johnson v. Bay tup, 3 Ad. & E. 188, wherein the real plaintiff “being in possession of a house and premises, defendant asked leave to get vegetables in the garden; and having obtained the keys for this purpose, fraudulently took possession of the house, and set up claim of title.” It was held, “that, having entered by leave of the party in possession, she could not defend an ejectment, but was bound to deliver up the premises before she proceeded to contest the title;” and that “a mere licensee is, in this respect, on the same footing as a tenant.” In Glynn v. George, 20 N. H. 114, it was held: “One who is in possession of land under a license, can not dispute the title of the grantee of the party from whom such license has been derived. After the expiration of the term of the license,, his possession, as against such grantee, is that of a mere trespasser.” In Kluge v. Lachenour, 34 N. C. 180, it was held that a mere licensee of a lessee is estopped to deny the landlord’s title. In a later case, before the same court, the defendant, as overseer bf a road, entered on and took possession of a piece of land belonging to the plaintiff, [812] for road purposes, under a license from the tenant of the plaintiff. In a suit for damages, brought by the plaintiff for the alleged trespass, the court, after first holding that a license from one who had. no right to give it can not justify an illegal act, held further, that one who enters as a licensee is estopped to' deny the title of -his licenser, and when the license is given by a tenant, the licensee is estopped to deny the title 'of the licenser’s landlord. To the same effect was the ruling in Hamilton & Rossville Hydraulic Co. v. Cincinnati, Hamilton & Dayton R. Co., 29 Ohio St. 341, in which it was held, that where a license to fill up a watercourse was obtained from a corporation in possession as owner, in consideration of a promise to 'reopen and restore the watercourse when requested so to do, the licensee, when sued for a breach of his promise, was estopped from setting up that the' ownership and maintenance of the watercourse by the corporation were ultra vires. See Williams v. Cash, 27 Ga. 507 (73 Am. D. 739); Harris v. Amoskeag Co., 101 Ga. 641 (29 S. E. 302). According to the allegations of the petition, the plaintiff had fully performed her part of the contract with Doss, by allowing Watters, his assignee, to cut and remove the timber and cord-wood from the land; and this being true, Watters’s right to hold possession of the land for any purpose had terminated, and he' had become, relatively to the plaintiff, a mere trespasser, against whom she had a right of action for the recovery of the land. None of the special demurrers was meritorious. As already shown, it was not necessary for the plaintiff to show any legal title to or prior possession of the land; as the defendant having entered upon the same as her licensee, his possession, during the term of his' license, was her possession, and he was in no position at the institu-, tion of the suit to dispute her title. Eor the same reason, it was not necessary for the plaintiff to set forth, or attach, an abstract of title. The demurrer upon the ground “that plaintiff contracted and agreed that she owned and had full power to represent all interest in the land, or that she would procure the written ratification of the parties holding interest therein,” and “It does not appear that she has complied or is able to -comply with the terms of her agreement with reference to said matters and things,” is so obviously without merit as hardly to need discussion. According to the petition the defendant, Watters, had remained in the undisturbed possession of [813] the land for the full term of ihis license, and had received and enjoyed all the benefits to which he was entitled under the contract, and it was no concern of his in this suit whether the plaintiff owned, or had full power to represent, all interests in the land or not. Construing the stipulation here referred to as being- in the nature of a warranty of title and quiet enjoyment, there had been no breach of the same, and the right of Watters to hold possession of the land for any purpose had ceased to exist. In reference to the fifth ground of demurrer,- it may be said, that while it is true that in the contract between the plaintiff and Doss the plaintiff did not undertake to" convey any interest in the land further than the timber growing thereon, and that one may own the standing timber upon a given tract of land without holding the legal title'to, or even being entitled to the possession of the land itself, yet .it is apparent, under the allegations of the petition, that the possession which Watters obtained was derived from the plaintiff. Moreover, the contract shows that Doss dealt with the plaintiff as an owner of the land and as having the right to the possession of the same. He not only -agreed to purchase from her the timber upon the land, but, in consideration of the sale of the timber to him, he also agreed to erect on the land a four-room dwelling-house and also a kitchen,- and to inclose the whole tract with a substantial barbed wire fence, thus impliedly recognizing, if not her title to the land, at least her right- to the possession of the same. On the other hand the contract, as amplified and explained by the sealed instrument which was signed by both the plaintiff and Doss, contains the stipulation, apparently inserted at the instance of Doss, that the plaintiff “hereby contracts and agrees that she now owns or has full power to represent all interests in said lot or she will procure the written ratification of the parties holding interest therein.” This shows that the parties were not dealing with the timber,upon the land as an interest therein which had been previously -carved out of the entire fee, but as something which at the inception of the contract was still embraced in the original fee to the land itself and which, but for the making of the contract, would so continue. v Judgment affirmed. All the Justices concur.