Harms v. Entelman

Harwell, J. The petition set forth a cause of action. The contract is not set out, and we can not tell whether it was simply a contract of rental with only a usufruct to the tenant, or whether it conveyed an estate for years. The former would not be subject to levy and sale. Civil Code (1910), § 3691. The latter would be, as any other estate. Civil Code (1910), 3687; Clark v. Herring, 43 Ga. 226 (2). The petition refers to it as a lease for five years, and a lease proper is an estate for years. Civil Code (1910), § 3690; Schofield v. Jones, 85 Ga. 816, 823 (11 S. E. 1032). In the instant case the unexpired term of the lease has been sold [296] and the sale assented to by the landlord, evidenced by his letting the purchaser remain in possession, receiving rent from him, and bringing suit for the rent during the unexpired term. That being true, it does not lie in the mouth of the purchaser to say that the unexpired term was not subject to levy and sale, and that he is only a tenant at sufferance, and can leave the premises whenever he wills, and so relieve himself of the obligation to pay the rent. The provision in § 3691, supra, that the usufruct is not subject to levy and sale is a statutory provision in favor of the landlord. It was not so at common law. Hudson v. Stewart, 110 Ga. 37, 40 (35 S. E. 178). The landlord in this case waives the right and assents to the sale.' Compare Kanawha Gauley Coal &c. Co. v. Sharp, 73 W. Va. 427 (80 S. E. 781, 52 L. R. A. (N. S.) 968, Ann. Cas. 1916E, 786). The purchaser, therefore, will not be. heard, after he has purchased the unexpired term and taken possession of and held the premises under the contract of lease, and thereby enjoyed the fruits of the contract, to contend that he is not bound by its terms. By electing to hold under it he will be held to assent to its terms. He can not assent in part and repudiate in part; upon the same principle that a principal can not ratify in part and repudiate in part. Civil Code (1910), § 3593; Hunter v. Stembridge, 17 Ga. 243; Howard v. Cassels, 105 Ga. 412, 418 (31 S. E. 562, 70 Am. St. R. 44). “A judicial sale of a lease imposes on the purchaser the obligation of paying to the lessor the rent accruing after the sale according to the terms of the lease; and this is true whether or not the purchaser enters into possession.” 24 Cyc. 1181 (5); D’Aquin v. Armant, 14 La. Ann. 217; McCean v. Caldwell, 107 Tenn. 138 (64 S. W. 16); Smith v. Brinker, 17 Mo. 148 (57 Am. Dec. 265); People v. Dudley, 58 N. Y. 323; Sutliff v. Atwood, 15 Ohio St. 186. A purchaser of a leasehold interest at a judicial sale is bound to perform the covenants of the lease for the payment of rent as an assignee of the term. Note in Ann. Cases 1916E, 821. And he can not relieve himself from liability for the rent by abandonment of the premises. Note in Ann. Cases 1916E. 805. See also 16 R. C. L. 363, 367; Wood’s Landlord and Tenant, §§ 334, 348. On no theory could Harms be a tenant at sufferance, under the facts alleged. See the excellent opinion of Mr. Justice Cobb in Willis v. Harrell, 118 Ga. 906, 909 (45 S. E. 794). It was not necessary for the petition to allege possession of [297] the premises by the defendant, as is contended in the demurrer. The petition set forth a cause of action, and the court did not err in overruling the demurrer-thereto. Judgment affirmed. Broyles, P. J., and Bloodworth, J., concur.