McDonald v. Bell

Jenkins, J. 1. A landlord may elect to treat an undertenant or lessee of his premises as his own tenant, and, upon such, an affirmative election being made, the continued occupancy of the premisés by the under, tenant operates to render him liable to the landlord for the rent subsequently accruing. Hudson v. Stewart, 110 Ga. 37 (35 S. E. 178) ; Fountain v. Whitehead, 119 Ga. 241 (46 S. E. 104) ; McConnell v. East Point Land Co., 100 Ga. 129 (28 S. E. 80) ; Hearn v. Huff, 6 Ga. App. 56 (64 S. E. 298). 2. While it is true that “when a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position through a judgment of the court, or through the acquiescence of the opposite party to his prejudice, he will not thereafter be permitted to assume, as to the same subject-matter and against the same adversary, a contrary position” (Rap v. Cruce, 21 Ga. App. 539, 541, 94 S. E. 899, and eases there cited), this principle of law can not be invoked in favor of the plaintiff in the present distress-warrant proceeding. Although the record discloses testimony to the effect that in a former proceeding instituted by the same plaintiff to evict the same defendant as an intruder, and which resulted in a mistrial, the defendant himself testified that he had been accepted by the owner as the tenant of the property now involved in lieu of the original tenant, still, since it ^appears that [563] the plaintiff, by her own testimony in the present distress-warrant proceeding, has completely negatived her right to maintain such remedy, by repeatedly and unequivocally stating that she never at any time accepted or recognized the defendant as her tenant, but that she continued to bold the original tenant liable under the terms of his agreement, she is bound by her own solemn and fatal admissions thus made, despite the testimony as to what had been the previous conduct and admissions of the opposite party. , Decided April 16, 1919. Distraint; from city court'of Blakely—Judge Sheffield. May 21, 1918. L. M. Rambo, A. H. Gray, for plaintiff. A. L. Miller, for defendant. Judgment affirmed. Wade, C. J., and Luke, J., concur.