Summary
In Stevenson v. Allen, 94 Ga. App. 123 (93 S.E.2d 794) it was recognized that monthly lease payments are not due until each due date arrives.
Summary of this case from Williamson v. C S Realty Co.Opinion
36233.
DECIDED JUNE 12, 1956. REHEARING DENIED JULY 2, 1956.
Attachment. Before Judge Smith. Berrien Superior Court. March 24, 1956.
Edward Parrish, H. W. Lott, for plaintiff in error.
McDonald McDonald, contra.
By the terms of Code § 8-103 a creditor may sue out an attachment against his debtor when the debtor is actually removing, or about to remove, without the limits of the county, although the debt be not due at the time the attachment is sued out.
DECIDED JUNE 12, 1956 — REHEARING DENIED JULY 2, 1956.
On August 30, 1955, Mrs. Clarice Askew Allen sued out an attachment and garnishment in the Superior Court of Berrien County against Mr. and Mrs. E. R. Stevenson and alleged in the attachment that the defendants were indebted to her in the sum of $5,100 and were actually removing, or about to remove, beyond the limits of the county. The allegations of her declaration in attachment filed in court on December 12, 1955, as finally amended, are substantially as follows: The defendants are indebted to the plaintiff in the sum of $5,100 on a certain lease of realty, copy of which is attached to and made a part of the declaration. The lease is dated June 27, 1946, and provides for monthly payments of $300 per month, beginning February 1, 1947, and ending January 31, 1957. The lease was originally executed between the plaintiff and Mrs. M. B. Allen and contains a provision that it may not be assigned by the lessee except by the consent of the lessor. The lease, with the assent of the plaintiff, was duly assigned several times to various persons until the defendants obtain all of the rights of the lessee under the lease. According to the terms of the assignment to the defendants, the defendants were to pay all amounts due the plaintiff under the terms of the lease. All payments to be made under the terms of the lease have been made up to and including the one due on August 1, 1955. On or about August 25, the defendants informed the plaintiff that they were relinquishing their rights under the lease and would pay no further amounts under it; and, consequently, on August 30, 1955, the plaintiff sued out an attachment in the Superior Court of Berrien County against the defendants returnable to the December term, 1955, of that court, and caused a summons of garnishment to be served upon the Union Banking Company. Since suing out the attachment and garnishment, and up to the present time (March 24, 1956), payments are now due under the terms of the lease contract for the dates of September 1, October 1, November 1, and December 1, 1955, and January 1, February 1, and March 1, 1956.
The defendants' general and special demurrers to the declaration in attachment were overruled, and they have brought the present writ of error to this court to have that judgment reviewed.
By the following statement in their brief on file in this court, counsel for the defendants have narrowed the questions posed by their assignment of error upon the overruling of their demurrers to one: "The sole question for decision by this court is whether . . . [the plaintiff] had a legal right to sue out an attachment against . . . [the defendants], there being no rent due and the lease under which . . . [the defendants] occupied the premises being for more than five years duration."
By the terms of the lease itself, only a usufruct was granted the original lessee: "This contract shall create the relationship of landlord and tenant between lessor and lessee, and no estate shall pass out of the lessor; the said lease is not subject to levy and sale and not assignable by lessee except by lessor's consent," and it matters not that the term of the lease was for a period of more than five years. The express intention of the parties to the original lease was controlling upon this subject. Warehouses, Inc. v. Wetherbee, 203 Ga. 483 ( 46 S.E.2d 894), and citations.
The plaintiff gave her consent in writing to the assignment of the lease to the defendants conditioned upon their acceptance of the inventory of the lease. The defendants assigned the following acceptance on May 30, 1955: "We, Mr. and Mrs. E. R. Stevenson, do hereby accept the inventory of the equipment and furnishings of The Nashville Hotel as set forth in the original lease and inventory . . ." and paid the monthly rent for June, July and August, 1955. The defendants were, consequently, bound under the terms of the lease to pay the stipulated monthly rent for the remainder of the term of the lease and they could not relinquish their rights, or effect their discharge from liability, by a reassignment of the lease without the consent of the plaintiff. On August 25, 1955, according to the allegations of the declaration in attachment, the defendants notified the plaintiff that they were relinquishing their rights under the lease and would pay no further amounts under it. When the defendants notified the plaintiff that they did not intend to comply with the terms of the lease, she was at liberty to treat such notice as an anticipatory breach of the entire contract and sue for her entire damage, or to treat the contract as still binding and wait until the time for performance in order to give the defendants an opportunity to comply with the terms of the lease. Crosby v. Georgia Realty Co., 138 Ga. 746 ( 76 S.E. 38); Hines v. Cureton-Cole Co., 9 Ga. App. 778 ( 72 S.E. 191); Phosphate Mining Co. v. Atlanta Oil c. Co., 20 Ga. App. 660 ( 93 S.E. 532); Seabrook Coal Co. v. Moore, 25 Ga. App. 613 ( 103 S.E. 839); Mendel v. Converse Co., 30 Ga. App. 549 ( 118 S.E. 586); Parker v. King, 68 Ga. App. 672 ( 23 S.E.2d 575).
From the allegations of her declaration in attachment as amended, it would appear that the plaintiff has elected to pursue the latter course. She does not seek to recover her entire damage, but rather to recover the monthly payments due up to the time of the trial term. Although none of these monthly payments were due on August 30, 1955, when the attachment was sued out, it is alleged that the defendants "were actually removing, or about to remove, without the limits of the county," and the plaintiff was entitled to the attachment under the terms of Code § 8-103, which provides: "When the debt is not due, the debtor shall be subject to attachment in the same manner and to the same extent as in cases where the debt is due, except that where the debt does not become due before final judgment, execution upon the judgment shall be stayed until the debt is due." Harrill v. Humphries, 26 Ga. 514; Askew v. Melvin, 144 Ga. 348, 349 (4) ( 87 S.E. 278); Graves v. Strozier, 37 Ga. 32. The trial court, consequently, did not err in overruling the demurrer based on the ground that since the debt was not due attachment would not lie.
There is nothing to be found in Nicholes v. Swift, 118 Ga. 922 ( 45 S.E. 708), contrary to the decision reached in the present case.
In the Nicholes case, the lessor and lessee entered into a parol agreement for the lease of the premises for a period of two years. By the terms of Code § 61-101 such an agreement in parol created, for the period of time extending beyond one year, a tenancy at will, terminable upon the requisite notice for which provision is made in Code § 61-105. The lessee gave the requisite notice of his intention to surrender his premises at the end of the first year, and duly surrendered the premises. These actions by the lessee terminated the relationship between the parties entirely, and terminated the lessee's liability for rent for the second year; and, in that case, the lessor was seeking to recover only the rent for the second year. There was no question in that case of the rent's ever becoming due at a later date, and the court's remarks, in Division 2 of the opinion in that case, upon the question of whether attachment would lie where the debt claimed had not become due were entirely unnecessary to the decision in the case and were obiter dicta.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.