1. Where a tenant, in her counter-affidavit to a warrant to-evict her as a tenant holding over, avers that in the contract of tenancy the landlord also gave her an option to purchase at a stated sum “and. that in ease they [the landlord] decided to sell said plantation to any one, they would give her notice of same and the refusal to purchase,”' the option to buy as thus alleged was for the stated sum, and not for a less sum for which the landlord might sell to another. Under the-facts a tender was necessary; but a tender of a less sum than the-stated amount was not in compliance with the tenant’s obligation, and. did not give to the tenant such an equitable title as would prevent her eviction after she has held over beyond her term of tenancy.
2. Where in such ease the defendant had executed and filed the statutory bond with her counter-affidavit, after the part seeking equitable relief' had been dismissed, it was competent for the court to permit counsel for the plaintiff to introduce evidence to meet the remaining issue, tenancy or no tenancy, raised by the affidavit. Civil Code, §§4816, 4463. Latham v. Perryman, 77 Ga. 579, upon review, is reaffirmed. The evidence submitted for that purpose demanded the verdict, and it was not-erroneous for the court to direct the verdict and enter the judgment.
Judgment affirmed.
All the Justices concur, except Fish, O. J., absent. The pilaintiff demurred to all of the counter-affidavit following the words, “term of rent has not expired,” on the ground that the same set forth no cause for equitable relief against the plaintiff, and on several special grounds. The demurrer was sustained. The plaintiff was then allowed (over the objection that after the dismissal of the counter-affidavit nothing remained to be tried) to introduce in evidence a deed from Flannery & Co. to Farkas, dated November 12, 1904; and testimony that Mrs. Bennett at the time of the trial was in possession of the premises in dispute (described), that her term of rent expired on January 1, 1905, and she had not since rented from any one, that Farkas had demanded possession of the premises from her on January 2, 1905, which demand she has refused, and that the rent stipulated to be paid was $1,000, which was a reasonable rental value, etc. The court then directed a verdict in favor of Farkas. The defendant excepted to each of these three rulings. In the hill of exceptions it is contended: (1) That the legal effect of sustaining the demurrer to the counter-affidavit was to put the whole case out of court, the part demurred to- and stricken constituting the whole defense, and not being independent but merely explanatory of the contention that the defendant was not a tenant holding over, but was, by reason of the facts set out, in equity the real owner of the premises; and hence the court was without jurisdiction to direct the verdict and allow the judgment complained of, after the counter-affidavit had been so stricken. (2) That there was no lawful authority to allow an entry of judgment against the defendant and the surety on her bond, before a judgment of recovery thereon and failure to pay. Clayton Jones and D. F. Crosland, for plaintiff in error. Wooten & Uofmayer and Pope & Bennet, contra.