Mrs. M. B. Crawford, as administratrix of J. B. Crawford, sued out a dispossessory warrant to oust C. Z. Crawford as a tenant in possession of certain premises. The defendant file.d a counter-affidavit as provided in the statute, and the papers were returned to the superior court for trial.
1. The defendant demurred to the sufficiency of the 'affidavit on which the warrant issued. Thereupon the plaintiff offered an amendment, which was allowed. The demurrer was renewed to the affidavit as amended, and overruled. The clerk of the superior court certifies that the amendment can not be found in his office. As.the demurrer was aimed at matters curable by amendment,, in the absence' of the amendment we can not know the state of the pleadings as amended; and therefore no question is presented for adjudication.
2. Upon the allowance of the, amendment the defendant moved for a continuance on account of it. Movant did not comply with the statute' which requires him to state on oath, or his counsel to state in his place, that he is surprised by such amendment and that he is less prepared for trial, and how, than he would have been if such amendment had not been made, and that such surprise is not claimed for the purpose of delay. Motions of this kind aré in the discretion of the judge (Civil Code, § 5714), and there was no abuse of discretion in overruling the motion.
3. Defendant offered to amend his counter-affidavit by alleging
4. The uncohtroverted facts at the trial disclosed that J. B. Crawford and Nancy A. Crawford, husband and wife, possessed certain estates. Nancy Crawford died testate, and her will was offered for probate. After the death of his wife Nanc3r, J. B. Crawford remarried and died, leaving a will executed prior to his last marriage. He left no children, and his widow, claiming that an intestacy resulted because his second marriage had the effect of revoking his will, applied for letters of administration on his estate. Her application was caveated. There was also a caveat filed to the probate of the will of Nanc3r Crawford. Both of these cases were taken by appeal to the superior court of Eulton corufiy, and while pending there the parties litigant entered into a contract of settlement, by which the will of Nancy Crawford was to be probated, 'and letters of administration were to be granted to M. B. Crawford, the widow of J. B. Crawford, upon his estate; and the property of the two estates was to be distributed under a general scheme set out in the agreement, which included a provision for the pa3unent of certain debts of both estates. Contemporaneously with the execution of this agreement C. Z. Crawford, who was a legatee of Nanc3r Crawford, executed the following agreement, which was attached to the foregoing contract, to wit: “Desiring to remove any contention as to the claim of C. Z. Crawford and Mrs. Lula Miller of [to] the estate of J. B. Crawford, referred to in the attached contract, and alone for the purpose of consummating said contract, and should not said contract be consummated, then the concessions herein made are not to be binding or used as admissions against said C. Z. Crawford and Mrs. Talulah Miller; subject to the above conditions, I, C. Z. Crawford, will not claim any interest, title, right in the estate of J. B. Crawford, except a debt or
Under the foregoing facts what was the status of C. Z. Crawford in his relation to the premises and to the administratrix of J. B. Crawford? According to his admission in the contract of settlement, he did not claim title to the premises, but only a right to the possession of the same for life in consideration of certain improvements he had erected thereon; and in the event J. B. Crawford or his estate took control of the premises, he was to be paid for his improvements. In the contract of settlement the value of these improvements was agreed upon, and it was stipulated that upon the consummation of the attached contract he would not claim any interest, title, or right in the estate of J. B. Crawford. As soon as the settlement was reached, steps were taken to consummate the agreement of the parties. In pursuance thereof the will of Nancy
An estate at sufferance, 'as defined by Blackstone (2 Bl. Com. *150), “is where one comes into possession of land by lawful title, but keeps it afterwards without any title at all. As, if a man takes a lease for a year, and, after the year is expired, continues to hold without any fresh leave from the owner of the estate.” A tenancy at sufferance arises where one enters into possession under a lawful demise, and his retention of possession after the expiration of his term is by the mere laches or neglect of the owner to take possession of the premises; where the entry is lawful, but the holding over is wrongful. Godfrey v. Walker, 42 Ga. 562; Willis v. Harrell, 118 Ga. 906 (45 S. E. 794); Sharpe v. Matthews, 123 Ga. 794 (51 S. E. 706); Purtell v. Parris, 137 Ga. 318 (73 S. E. 634). The admission of C. Z. Crawford is that he had only a usufructuary interest in the land, which was to continue for life unless-it were sooner determined by the owner taking possession of the same upon paying for improvements. A tenant for life, whose estate or right of possession is to terminate upon the happening of a contingency named, becomes a tenant at sufferance if he continues in possession after the happening of such contingency. 1 Tiffany on Landlord and Tenant, 152. The contingency contemplated in the contract was the consummation of the general contract of settlement between the parties interested in the estates of Nancy Crawford as legatees, and the widow of J. B. Crawford. According to the agreement,
5. The statute provides that a warrant to dispossess a tenant holding over or at will or sufferance be directed to the sheriff or his deputy or any lawful constable of the county where the land lies. Civil Code, § 538G. The warrant in the instant case was directed to any lawful constable of. the county. A motion was made to dismiss the proceeding, because of the alleged misdirection of the warrant, inasmuch as it appears that it was executed by a deputy sheriff, who was without authority to execute it. This motion was properly overruled. . The warrant is the process empowering the officer to evict the tenant. Upon the filing of a counter-affidavit the whole proceeding becomes mesne, and the issue is that made by the affidavit and counter-affidavit. The officer who served the warrant had authority to serve it under the statute; and if the defendant wished to contest the authority of the deputy sheriff, to execute the warrant, he should have taken steps to that end at the time the officer was attempting to execute it. .By submitting to the officer’s authority and filing a counter-affidavit, he waived the mistake in the direction. By his own conduct he converted the final process into mesne process. The situation is analogous to a defendant, who, though served -with a void process, pleads to the merits of the ease. Pleading to the merits cures defects in the process or manner of its service.
6. The plaintiff closed her case and a motion for nonsuit was made. Counsel for plaintiff asked the court to reopen the case
7. The various rulings complained of were without substantial error. The evidence demanded a verdict that the defendant was a tenant at sufferance and subject to eviction. The plaintiff did not claim any rent. It was therefore not erroneous to direct a verdict for the plaintiff, commanding the issuance of a writ of possession of the premises.
Judgment affirmed.