Hindman v. Raper

Lumpkin, J. (After stating the foregoing facts.) Raines conveyed the land to Raper during the term of the tenancy of Hind-man. In Raines v. Hindman, 136 Ga. 450 (71 S. E. 738, 38 L. R. A. (N. S.) 863, 34 Ann. Cas. 347), it was held that Raines could not evict the tenant after the expiration of the term, on the ground that the latter was a tenant holding over beyond his term, .or on the ground of non-payment of rent. In the opinion it was said that “Raper had the right, after 1907, to dispossess the defendant as a tenant holding over, upon the failure of the latter to deliver possession to him.” Acting under this, Raper made an affidavit and obtained the issuance of a dispossessory warrant. Raines proceeded by distress warrant to recover the rent for 1907, and obtained a judgment therefor. This adjudicated the existence of the relation of landlord and tenant between him and Hindman in that year. The conveyance made from Raines to Raper during the term made the latter the landlord. The direction of the verdict was, however, erroneous. It included double rent for the years 1908 to 1913, inclusive. Two of these antedated the commencement of the present proceeding. Raper testified that he demanded possession from the defendant, but he did not know the date of the demand. Hindman denied that Raper ever spoke to him about vacating the premises or about rent, or gave him any notice to vacate. A proceeding of this character can not be used as a means of recovering back rent accruing before any demand for possession. Talley v. Mitchell, 138 Ga. 393 (75 S. E. 465). Under the conflicting evidence in regard to the demand, it was error to direct a verdict. A demand for possession made by Raines after he had conveyed the property to Raper would not authorize the latter to recover possession with double rent. The judgment against Raines on the dispossessory warrant sued out by him adjudicated the fact that he was not entitled to recover possession, because he was not the landlord when he commenced the proceeding, but it did not adjudicate that he never had been such. Judgment reversed. All the Justices concur.