
    17934.
    Garbutt & Donovan v. Barksdale-Pruitt Junk Company.
    Landlord and Tenant, 35 O. J. p. 970, n. 72; p. 971, n. 81; p. 977, n. 80; p. 1001, n. 65; p. 1002, n. 73, 78; p. 1003, n. 82; 30 O. J. p. 369, n. 24, £6; p. 378, n. 39, 40, 41, 44, 45; p. 379, n. 49, 54.
   Jenkins, P. J.

1. A lease of real estate for a-term less than five years passes no estate out of the landlord, the tenant has only a usufruct, and he can neither sublet the premises, nor convey his usufructuary interest, nor assign his lease without the landlord’s consent. Sealy v. Kuttner, 41 Ga. 594; Hooper v. Dwinnell, 48 Ga. 442, 445; Hudson v. Stewart, 110 Ga. 37 (35 S. E. 178); DeFoor v. Stephens, 133 Ga. 617, 619 (66 S. E. 786). If, with the consent of the landlord, the tenant subrents the rented premises, the subtenant becomes the tenant of the original tenant, who is entitled to proceed against him for rent, under the agreement made between those parties (Boyd v. Kinzy, 127 Ga. 358, 56 S. E. 420); but the status of the original tenant with the owner remains the same, and the original contract between them remains unimpaired. In such a case the subtenant does not become the tenant of . the owner, and the owner can not proceed against him for rent, although in the case of agricultural lands ho would have a special lien on the crops raised by the subtenant. Hudson v. Stewart, supra; McConnell v. East Point Land Co., 100 Ga. 129, 134 (28 S. E. 80). If, without the consent of the landlord, the tenant should undertake to sublet the premises, the landlord, not being bound thereby, may ignore such unauthorized agreement without in any wise affecting his rights under his contract with the original tenant, or he may refuse to recognize the right of possession in the. subtenant and proceed to expel him from the rented premises as a more intruder; or he may, at his option, > affirmatively elect to treat such unauthorized subtenant occupying his premises as his own tenant instead of the original tenant, in which cáse the relationship of landlord and tenant between the owner and the original tenant ceases. Such an election on the part of the landlord owner whereby the new unauthorized subtenant is substituted as 'tenant for the original tenant may be effected by an expressed recognition by the owner of the subtenant as his tenant, or it may be implied from such' affirmative acts and conduct as will clearly indicate an intention on the part of the landlord to effect such a substitution. Mere acquiescence in the subtenant’s possession of the rented premises under his agreement with the original tenant does not constitute such an election; nor will the mere acceptance of payments by the subtenant in aecoi'dance with the terms of the original contract made with the original tenant be held to constitute an abandonment of the contract with the original tenant and the substitution of a new agreement with the subtenant. Cuesta v. Goldsmith, 1 Ga. App. 48 (57 S. E. 983); Americas Manufacturing &e. Co. v. Hightower, 3 Ga. App. 65 (59 S. E. 309); Hooks v. Bailey, 5 Ga. App. 211 (62 S. E. 1054); Mendel v. Barrett, 32 Ga. App. 581 (124 S. E. 107). In order for the acceptance of such payments as made by an unauthorized subtenant to have the effect of establishing such a new agreement, it must clearly appear that it was the intention of the landlord to accept the payments as made by the subtenant on his own behalf as the owner’s tenant, instead of through him for and on behalf of the original tenant.

Decided September 12, 1927.

Distraint; from Chatham superior court—Judge Meldrim. November 8, 1926.

Oliver & Oliver, John Z. Ryan, for plaintiffs.

Travis & Travis, for defendant.

2. It not appearing in the instant ease that the landlord had ever recognized the defendant partnership as his tenant, and it not appearing that the payments for rent by partnership checks as made by the member of the partnership with. whom' the original written contract of tenancy was made were received and accepted as payments made by the partnership as tenant, the court did not err in granting a nonsuit.

Judgment affirmed.

Stephens and Bell, JJ., concur.  