Lewis v. Storch

Eberhardt, Judge. Each of the leases was admitted in evidence. The first designates both Lewis and Williams as lessees, was signed by both of them, is dated January 12, 1967, and is for a term beginning February 1, 1967, and ending January 31, 1972. Storch signed it as lessor and the signatures were attested by Etta S. Brundage. The second lease names only Williams as lessee, was signed only by Williams as lessee, was dated January 12, 1967, and is for a term beginning February 20, 1967, through February 19, 1972. It was signed by Storch as lessor and the signatures were attested by Mary A. Lasseter. This documentary evidence demands a finding that there were two separate leases. There is no possible reconciliation of the documents with the testimony of Storch. Both were signed by Storch. They were for different terms, named different lessees and were attested by different witnesses. He does not deny his signatures or the execution of each of them. Cf. Moran v. Bank of Forsyth, 129 Ga. 599 (59 SE 281); Marable v. Mayer, Son & Co., 78 Ga. 60; Cook v. Powell, 160 Ga. 831 (14) (129 SE 546). The inescapable conclusion from the evidence relative to the intended use, the city requirements for obtaining licenses, and the past records of the two men (Storch testified that Williams had a “clean” record and could obtain a license from the city) is that Storch did execute the second lease, inter alia, as Lewis explained, to enable a tenant in the property to obtain a license for operating the contemplated business (Lewis was ineligible for a license due to prior criminal convictions), and that it was in all respects a valid lease. A contention that it was a void lease, made only to evade the requirements of the licensing ordinance, is untenable. [87] Since Storch now declares on the first lease he is estopped to assert any intention that the second was intended to operate as a novation of the first. The question, then, is whether he is lawfully in position to proceed for collection of rentals under the first lease. “Every action shall be prosecuted in the name of the real party in interest.” Code Ann. § 81A-117 (a). “An action shall be prosecuted in the name of the party who, by the substantive law, has the right sought to be enforced.” 3A Moore’s Federal Practice 221, § 17.07. There is an elaborate annotation on the matter of concurrent leasings or transfers of the reversion in LRA 1915C 190 et seq. Under the old feudal system in England it was necessary to have the assent of the tenant before the landlord could make a valid transfer of the reversion, but that requirement was abolished under the Statutes 4 & 5 Anne, Ch. 16, §§ 9, 10 and 11 of George II, Ch. 19, § 11. These were in force during our continuance as a colony and were adopted by the General Assembly of this State as a part of the common law. See Cobb’s Digest, 1851, p. 721; Hannah v. State, 212 Ga. 313, 322 (92 SE2d 89). Consequently, there has been and is no requirement that the tenant consent to a transfer by the landlord of his reversion, resulting in a substitution of landlords. Of course without the tenant’s consent or release the landlord cannot by a transfer relieve himself of his own obligations to the tenant under the lease, but there is no proscription against a transfer of his rights. This can be effected by the making of a deed, granting the fee to another, assigning the lease, or it can be accomplished by the execution of a concurrent lease, which is sometimes referred to as an overlease. “The lessor may convey to a third person his reversion, by a concurrent lease, and the lessee thereunder becomes the landlord of the first lessee, with the right to collect the rent and enforce the covenants of the first lease until the expiration of the term of one or the other of the two leases. Wordsley Brewery Co. v. Halford, 90 L. T. N. S. 89; Attoe v. Hemmings, 2 Bulstr. 281; Harmer v. Bean, 3 Car. & K. 307; Horn v. Beard, 81 L. J. K. B. N. S. 935, 3 K. B. 181, 107 L. T. N. S. 87; Disdale v. Iles, 2 Lev. 88; [88] Holland v. Vanstone, 27 U. C. Q. B. 15; Cheatham v. J. W. Beck Co., 96 Ark. 231 (131 SW 699); Root v. Trapp, 10 Kan. App. 575 (62 P 248).” LRA 1915C 198. “[T]he landlord may part with his rights pending the tenancy, and in that event the right to recover from the tenant would not be in the original landlord, but in his transferee. . . In such cases the tenant’s attornment to the person acquiring the landlord’s right is perfectly consistent with the maxim that the tenant cannot dispute his landlord’s title; for the concept that there is an identity and a community of right in all the interdependent estates and holdings which may come about by operation of law or the act of the parties, as to any and all grades of title or possession, renders the title (putative or actual) of the landlord and that of the person acquiring his rights one and the same in legal contemplation.” Powell, Actions for Land (Rev. 1946) 435, § 369. And see Beall v. Davenport, 48 Ga. 165 (15 AR 656); Ferguson v. Hardy, 59 Ga. 758; Grizzle v. Gaddis, 75 Ga. 350 (3); Blitch v. Lee, 115 Ga. 112 (41 SE 275); Garrison v. Parker, 117 Ga. 537 (43 SE 849); Raines v. Hindman, 136 Ga. 450 (71 SE 738, 38 LRA (NS) 863, AC 1813C 347); Stewart Bros. v. Cook, 24 Ga. App. 509 (101 SE 304); Salter v. Salter, 81 Ga. App. 864 (60 SE2d 424). By execution and delivery of the second lease to Williams, Storch divested himself of any right to proceed against the lessees in the first lease for the collections of rentals accruing thereunder. He can, of course, collect rentals accruing under the second lease from the tenant named therein — -but that is not the subject matter of this action. The judgment here should have been for the defendant for the reason discussed. Judgment reversed. Felton, C. J., Bell, P. J., Jordan, P. J., and Deen, J., concur. Hall, Pannell, Quillian and Whitman, JJ., dissent.