Opinion
13916
October 2, 1934.
Before RICE, J., Marlboro, January, 1933. Appeal dismissed.
Dispossess proceedings by A.L. Calhoun against Mrs. Eliza Currie and another. From an order of the Circuit Court reversing the order of a magistrate holding that he was without jurisdiction and remanding proceedings to magistrate with directions, defendants appeal.
The order of Judge H.F. Rice follows:
This matter comes up on appeal from the magistrate's Court.
Upon the affidavit of the movant, A.L. Calhoun, Jr., that he was the owner of the tract of land described in the proceeding which is the same described in that lease from F. Luther Currie to Mrs. Eliza Currie et al., dated June 6, 1906, and recorded in Book 11 at page 273 in the clerk's office, Marlboro County, and that the respondents, Mrs. Eliza Currie and Miss Ada Maxie Currie, were in possession of the said premises as tenants, and had failed and refused to deliver possession to the plaintiff thereof, due demand therefor having been made, and that the said tenants had failed and refused to pay the rents past due upon said premises, a rule to show cause was issued by the magistrate requiring the said Mrs. Eliza Currie and Ada Maxie Currie to show cause why they should not be dispossessed. The respondents came in, and made their return which they labled "Answer," but it is in fact a return to the rule in this special proceeding. They did not controvert any of the facts alleged in the affidavit other than to set up that the question of title was involved under an instrument from F. Luther Currie to them, and that, therefore, the magistrate did not have jurisdiction. They put in as a part of their return this instrument and the record of the case of Calhoun v. Currie, which set out on page 2 thereof the instrument in question. The magistrate held that the respondents having alleged in their return that the title to real estate was involved, he was automatically deprived of jurisdiction, and, in effect, that he did not have power to determine whether the relation of landlord and tenant existed. The respondents admitted that the action of A.L. Calhoun v. Eliza Currie et al., the record of which was put in as a part of their return, was concluded, and the appeal to the Supreme Court long since abandoned.
It is a well-settled principle of law in a proceeding of this kind that when the relation of landlord and tenant is shown to exist, the tenant cannot raise the question of title to real estate being involved, for he is estopped by the relationship to deny his landlord's title. Stewart-Jones Company v. Shehan 127 S.C. 451, 121 S.E., 374, 376.
"The rule may be rested and soundly grounded upon the perfectly valid assumption that the issue of title cannot properly arise in such a proceeding, for the reason that the proceeding contemplated and authorized by the statute is one by a landlord against a tenant who is estopped by that relationship to deny his landlord's title."
In a proceeding of this kind it is necessarily competent for the magistrate to determine as a fact whether the relation of landlord and tenant exists. Lewis v. Cooley, 81 S.C. 461, 62 S.E., 868; Stewart-Jones Company v. Shehan, 127 S.C. 451, 121 S.E., 374, 376.
"Necessarily, therefore, it is competent for the magistrate to determine as a fact whether the relation of landlord and tenant exists. Lewis v. Cooley, supra. Otherwise any tenant, by merely denying the landlord's title or by asserting superior title in himself or in another, could oust the magistrate of jurisdiction and frustrate the plain and salutary object of the statute."
The only question, therefore, in the cause is, "Was the relation of landlord and tenant made to appear?" If so, under the well-settled principles of law referred to, the respondents are estopped from denying the landlord's title, and by merely asserting such a claim they could not oust the magistrate of jurisdiction. The respondents, themselves, put in as a part of the record the case and judgment in the action of A.L. Calhoun v. Eliza Currie et al., a review of which clearly shows that the relation of landlord and tenant existed between the parties, and the respondents herein were parties to said action, and are bound by the judgment therein. The instrument set out in that action on page 2 of the record is clearly a lease, and creates the relation of landlord and tenant calling for the payment of $75.00 per year on "November the first of each year during the term of the lease." This record further shows that A.L. Calhoun succeeded to the title of F. Luther Currie, the lessor, and stepped into his shoes as such. The Court in that action held that A.L. Calhoun was the owner of the property as successor in title to F. Luther Currie, and was entitled to the rents under the lease from the respondents. In that action, the defendants, the respondents before this Court, by their amended answer alleged that they had paid the rent in advance. (Page 6 of the case record.) They did not claim any title to the land and admitted A.L. Calhoun's title. It is quite clear that the respondents are bound by the judgment in this proceeding holding that they are tenants, and owe Calhoun the rent. I conclude, therefore, that the judgment of the Court in that action which was before the magistrate is binding upon the respondents and establishes the relation of landlord and tenant between the parties. The magistrate had the power to determine whether or not the relation of landlord and tenant was shown to exist, and the judgment of the Court being before him showing the relation of landlord and tenant to exist, he erred in not so holding.
It is therefore ordered, adjudged, and decreed that the order of George W. Freeman, Esquire, magistrate for Marlboro County, filed in the above proceeding, holding that he was without jurisdiction, be reversed; the return of the respondents is adjudged insufficient and the cause remanded to the said magistrate, with direction to forthwith issue an order of ejectment directed to the sheriff of Marlboro County authorizing and requiring him without delay to dispossess the respondents Mrs. Eliza Currie and Miss Ada Currie from the premises described in the rule to show cause, and to use such force as may be necessary to place A.L. Calhoun, Jr., in possession thereof.
Messrs. N.W. Edens and Tison Miller, for appellants, cite: As to construction of both wills and deeds: 8 R.C. L., 928, 931. Covenant: 8 R.C.L., 1100; 1 L.R.A., 380; 2 L.R.A. (N.S.), 741; 108 S.C. 271; 94 S.E., 19.
Messrs. Rogers Ellerbe, for respondent, cite: Writ of ejectment: 127 S.C. 445.
October 2, 1934. The opinion of the Court was delivered by
The respondent obtained from Magistrate Freeman a rule requiring the appellants to show cause why they should not be ejected from certain premises. For return to the rule to show cause issued by the magistrate, the appellants set up claim of title to the real estate in dispute. The magistrate held that he was without authority to determine the question of title, and that he, therefore, had no jurisdiction of the proceeding, and dismissed it. On appeal to the Circuit Court, Judge H.F. Rice reversed the action of the magistrate in an order which is satisfactory to this Court. Let it be reported.
The appeal is dismissed.
MR. CHIEF JUSTICE BLEASE, MESSRS. JUSTICES STABLER and CARTER and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur.