1. In a proceeding in which it is sought to set aside and vacate a verdict and judgment obtained at a previous term, on the ground that certain testimony was false, such ground is without force where it is not alleged that the witness giving the false testimony has been found guilty of perjury. Code, § 110-706; Foster v. Cotton States Electric Co., 172 Ga. 231 (157 S.E. 636); Bird v. Smith, 186 Ga. 301 (197 S.E. 642).
2. The result is not altered because the pleader denominates his proceeding one in which it is asked that the verdict and judgment be set aside on the ground that they were obtained by fraud, since the frauds for which the court may set aside a former judgment between the same parties are limited to matters which are extrinsic and collateral to the issue tried in the former case, and do not include fraud in procuring a judgment by false testimony, unless it is shown, among other things, that the witness has been convicted of perjury. Elliott v. Marshall, 182 Ga. 513 (185 S.E. 831); Young v. Young, 188 Ga. 29, 31 (2 S.E.2d 622).
3. The conviction of a perjured witness is not itself sufficient to justify a court in setting aside a verdict and judgment in a case in which he testified, unless the verdict or judgment could not have been obtained and entered without the evidence of such perjured person. Code, § 110-706; Richardson v. Roberts, 25 Ga. 671; Munro v. Moody, 78 Ga. 127 (2 S.E. 688).
4. The essential basis upon which the right to a distress warrant arises is the existence of the contractual relation of landlord and tenant.
5. Regardless of other contentions made, a plaintiff in a distress warrant, to which a counter-affidavit is filed which sets up among other things that the relation of landlord and tenant does not exist, is not even in a proper proceeding entitled to have the verdict and judgment against him set aside on the ground that certain testimony of the defendant was false, when it affirmatively appears from the case as submitted by the plaintiff that the alleged false testimony concerned a subject immaterial to any proper issue before the court.
No. 13726. MAY 16, 1941. On February 10, 1941, Stephens filed his petition or motion against Pickering, to set aside and vacate a verdict and judgment obtained at a previous term, alleging in substance as follows: The case was begun by the plaintiff having issued a distress warrant for the rent of certain property, and by the defendant filing his counter-affidavit. The case proceeded to trial at the August term of the court. The defendant was sworn, and testified in his own behalf that he never had any ownership of the property distrained, the subject-matter of the suit, nor had he ever received rental payment *Page 200 for the use of the property; that he had had no rental relationship with the plaintiff. Plaintiff alleges that such testimony was false, because, as plaintiff shows, by copy of a rental contract attached as an exhibit, the defendant had signed a lease contract, himself as lessor, for said property or machinery. Plaintiff alleges, that the "directed" verdict and judgment were obtained by fraud; that defendant leased the property to C. N. Bryan Company, a corporation of Andrews, North Carolina, as shown by exhibits attached to the petition or motion. On November 22, 1940, plaintiff gave notice to defendant's counsel of record in the case that he would file a motion to the February term, 1941, to have the judgment in the case set aside, because said judgment was obtained by fraud. A copy of this notice was attached to the petition. Also attached was copy of the verdict and judgment, and a transcript of the testimony as reported by the court reporter. The plaintiff prayed, that defendant be served with a copy of the motion; that the motion be heard at the February term, 1941, of the court; and that the verdict and judgment be set aside upon the ground that it was void because obtained by fraud.
The affidavit on which the distress warrant issued was as follows: "Personally appeared before me T. M. Stephens, Agent for T. M. Stephens, Gilmer County, who being duly sworn says that V. C. Pickering, owning property in Gilmer County, a resident of Murray County, Georgia, is indebted to said T. M. Stephens for rent two hundred and forty dollars, for rent now due and unpaid." Duly sworn to and attested by a justice of the peace of Gilmer County, Georgia. The counter-affidavit was as follows: "Georgia, Murray County. Personally appeared before the undersigned officer, who by the laws of said State is authorized to administer oath for general purposes, V. C. Pickering, and who, after being duly sworn, deposes and says: That he is the person named as defendant in a certain distress warrant for the sum of two hundred and forty dollars, lately issued by W. T. Henson, J. P. of the 850th District, G. M., of Gilmer County, Georgia, in favor of T. M. Stephens; and that the amount distrained for nor any other sum or amount is due thereon or in connection therewith. Defendant further says that at no time whatsoever did he ever enter into any contract of rental with the said T. M. Stephens, and that at no time has there any relationship of landlord and tenant ever existed between *Page 201 them in connection therewith or otherwise. Defendant further states that he is not a resident of Gilmer County, Georgia, but is a resident of the County of Murray, said State, and that on said account the courts of Gilmer County, Georgia, have no jurisdiction to try the issue involved in said case." Duly signed and attested.
Exhibit C was a lease from Pickering to C. N. Bryan Company, covering certain sawmill outfit located on described premises owned in fee simple by J. J. Kincaid, the lease being for six months beginning October 1, 1935. It was dated September 20, 1935. Also attached were three checks of C. N. Bryan Company to Pickering, each reciting that it was "for rent of stave mill" for the months of December, 1935, and February and March, 1936. In exhibit H, attached to the petition, is the copy of the testimony taken on the trial of the issue formed by the distress warrant and the counter-affidavit thereto. By amendment there was attached a letter as follows:
"V. C. Pickering, Contractor. Chatsworth, Ga. October 29, 1937.
"Mr. T. M. Stephens, Ellijay, Georgia.
"Dear Sir: I am in receipt of your letter of Oct. 28th, with reference to the Stave Mill located on your property in Ellijay, Ga. You mentioned in your letter that you had sent me word with reference to this mill, but I did not receive the word. Therefore I will ask that you please write me what your wishes in the matter are, as I desire to co-operate with you in any way I can, as this equipment is on my hands, and I would like to make arrangements with you, if possible, to allow the equipment to stay on the land for the present at least, until I can dispose of it. However, if you need the land for something else, of course I will move it; so please let me hear from you at your convenience.
"Yours very truly, V. C. Pickering."
Pickering interposed a demurrer on various grounds. The demurrer was sustained, and Stephens excepted. Only the ruling in the fifth headnote will be discussed. Complainant's insistence is that if Pickering had sworn the truth, a verdict contrary to that which was directed would have been demanded. The basis of this contention is that as a matter of fact Pickering did own the personal property left by Bryan *Page 202 Company on the premises owned by Stephens, as shown by the allegations and exhibits, notwithstanding his testimony delivered at the trial; and hence that, having shown title in the plaintiff and occupation by the defendant, an obligation to pay rent was implied. Code, § 61-103. The unsound plank in the foundation which is otherwise laid in the cited section is found in its concluding sentence. The entire section, with the sentence referred to italicized, is as follows: "When title is shown in the plaintiff and occupation by the defendant, an obligation to pay rent is generally implied; but if the entry was not underthe plaintiff, or if possession is adverse to him, no suchimplication arises." (Italics ours.)
Originally Stephens sued out a distress warrant against Pickering. A counter-affidavit was filed, denying, among other things, that the relation of landlord and tenant existed between the parties. The record shows that at the conclusion of the testimony the court directed a verdict against the plaintiff. In the present proceeding, a copy of the entire evidence adduced at that trial was attached to the petition. It appears therefrom that there was no evidence that Pickering entered the premises under the plaintiff. On the contrary it is affirmatively shown that on the trial, when Stephens was on the stand, the court asked him this question: "Did you make any trade to rent this to Mr. Pickering?" The answer was, "No, I didn't. I rented it to C. M. Bryant." Thus it will be seen that the entry of Pickering — if indeed merely purchasing from the tenant, during the latter's occupancy, machinery left on the rented premises after the tenant vacated could be called an entry — was not under the plaintiff, and hence the provisions of section 61-103 are not applicable. It has often been ruled by this court and the Court of Appeals that in order to maintain a distress warrant the relation of landlord and tenant must exist. Indeed, before the establishment of this court, the judges in convention in the year 1832, in the case ofHale v. Burton, Dudley's Reports, 105, held that distress for rent is a remedy which none but a landlord can have. The ruling in Hale v. Burton, has been constantly followed. SeeWilliams v. Hollis, 19 Ga. 313; Jackson v. Mowry,30 Ga. 143; Littleton v. Wynn, 31 Ga. 583; Smith v.Turnley, 44 Ga. 247; Cohen v. Broughton, 54 Ga. 296;Lathrop v. Standard Oil Co., 83 Ga. 307 (9 S.E. 1041);Hancock v. Boggus, 111 Ga. 884 (36 S.E. 970); Sims v.Price, 123 Ga. 97 (50 S.E. 961); Hearn v. *Page 203 Huff, 6 Ga. App. 56 (64 S.E. 298); Finn v. Reese,36 Ga. App. 591 (137 S.E. 574); Cleveland v. Watson, 51 Ga. App. 37 (179 S.E. 586). The relation of landlord and tenant exists where the owner of real estate grants to another person simply the right to possess and enjoy the use of such real estate, either for a fixed time or at the will of the grantor, and the tenant accepts the grant. Code, § 61-101. We have nothing of that kind here. According to the plaintiff's own contentions, he was not entitled to prevail on the distress warrant, even if it be true that the defendant swore falsely, and that the truth is that he owned the machinery that was left on premises owned by the plaintiff. The ownership was immaterial on the issue being tried. That Pickering may have let remain on the premises owned by Stephens, and which Stephens had rented to Bryan, certain machinery which Pickering purchased from Bryan, would give Stephens no right to maintain a distress warrant against Pickering. It follows that regardless of other reasons that may exist, as pointed out in the demurrer, the judge was right in sustaining it, because, assuming every contention of fact to be in his favor, Stephens should not be allowed to vacate and set aside a verdict and judgment because of the falsity of a parcel of the testimony, when, even admitting its falsity, the plaintiff has made it affirmatively to appear that under the evidence he has no just cause to complain of the verdict and judgment in the original case.
Judgment affirmed. All the Justices concur.