Opinion
13779
February 14, 1934.
Before ANSEL, J., County Court, Greenville. February, 1933. Affirmed.
Action by the Pure Oil Company of the Carolinas against O.S. Strom. From a judgment in favor of plaintiff, defendant appeals.
The order of Judge Ansel is as follows:
This is an appeal from the judgment rendered in the Court of Magistrate Louie E. Smith.
The notice and grounds of appeal are filed in the record.
The point involved in the case is, who is entitled to the possession of the lot of land and small building situate and lying in the County of Greenville on Anderson road and Jamison Street, being No. 13 on Anderson Street on which a filling station is located.
The plaintiff claims that it is entitled to the possession of said lot and small storehouse under a lease of the same from the lessor, the Payne Oil Company. In the agreed statement of the facts agreed upon by the attorneys for both parties, this statement is made: "The testimony showed that on the .... day of December, 1932, the Peoples Oil Co., Inc., acquired the holdings of the Payne Oil Co., which held a lease over the property in question."
The defendant claims "that the defendant was a tenant from year to year of the premises, his agreement having originally been entered into between himself and Mr. Payne which contract remained unaltered by the sales agreement and that, therefore, he had a right to remain on said premises until September 1st, 1933."
There was no written agreement as to this lease of the lot of land and small building thereon. There was a filling station on the lot, and the sales agreement mentioned in the agreed statement of facts was only as to furnishing of gas and oil, etc.
Was the defendant under his verbal agreement with the Payne Oil Company, in September, 1930, a tenant from year to year, or was he a tenant at will?
Section 8806 of the Code of Law 1932, Vol. 3. says as follows: "No Parol Lease Valid for More than One Year. — No parol lease shall give a tenant a right of possession for a longer term than twelve months from the time of entering on the premises; and all such leases shall be understood to be for one year, unless it be stipulated to be for a shorter term."
In the case of Matthews v. Hipp, 66 S.C. 168, 169, 44 S.E., 577, 579, the Court, construing the above section and others, says: "In the case of Hillhouse v. Jennings, 60 S.C. 392, 38 S.E., 596, the Court, in construing these statutes, uses the following language: `From the statutes and the decisions interpreting them the following principle may be declared: (1) A parol lease gives a tenant a right of possession for a term of twelve months from the time of entering on the premises. If the lease is for a term less than twelve months, of course the tenant would only be entitled to hold possession for the time stipulated after entering into possession of the premises. (2) A parol lease undertaking to give a tenant a right of possession for longer term than twelve months is within the statute of frauds. Nevertheless, if the tenant is permitted to enter on the premises by virtue of such agreement, he shall have a right of possession for twelve months from the time of such entry, but no longer. (3) A parol lease under which the tenant enters upon the premises shall, after the term of twelve months from the time of entering on the premises, have the effect of an estate at will only.'"
My opinion, therefore, is that the defendant in this case was in possession of said lot of land as a tenant at will of the landlord, and that the same terminated when the said Payne Oil Company made a written lease of the said lot of land to the People's Oil Company, who assigned same to this plaintiff.
It is therefore ordered that the appeal be sustained and the case remanded back to the magistrate, Louie E. Smith, to carry out the provisions of this order.
Mr. W.E. Bowen, for appellant, cites: Tenancy: 153 S.C. 126. Appellate Court limited to question made by exceptions: 34 S.C. 169; 13 S.E., 332.
Messrs. D.B. Leatherwood, and W.F. Wimberly, for respondents cite: As to parol lease: Sec. 8806, Code 1932; 60 S.C. 373; 38 S.E., 599; 44 S.C. 459; 22 S.E., 611; 102 S.C. 372; 86 S.E., 1066; 90 S.C. 50; 72 S.E., 878. As to exceptions: 34 S.C. 169; 13 S.E., 332; 87 S.C. 267; 69 S.E., 390; 74 S.C. 509; 54 S.E., 1016; 110 S.C. 254. Tenancy: 102 S.C. 372; 86 S.C. 1066; As to reversal by appellate Court: 87 S.C. 267; 69 S.E., 390; 70 S.C. 178; 49 S.E., 223; 70 S.C. 554; 50 S.E., 504.
February 14, 1934. The opinion of the Court was delivered by
This action is an ejectment proceeding on a rule to show cause, issuing out of the magistrate's Court, in Greenville County, February 20, 1933, requiring the defendant to show cause why he should not be ejected from certain premises in the City of Greenville, described in the agreed statement of counsel as "consisting of a store building and filling station at the corner of Anderson road and Jamison Street, Greenville, S.C." It appears from the transcript in the case that the defendant made an oral return to the rule when the case was called for trial, the case being tried in the said Court, March 14, 1933, before Magistrate Louie E. Smith and a jury, resulting in a verdict for the defendant. From judgment on the verdict, the plaintiff appealed to the County Court of said county, and the Judge of said Court, his Honor, Judge Martin F. Ansel, reversed the magistrate's Court, and rendered judgment in the cause for the plaintiff.
For the reasons stated in the order of his Honor, Judge Ansel, which order will be incorporated in the report of the case, the judgment of the County Court is affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and BONHAM and MR. ACTING ASSOCIATE JUSTICE W. C. COTHRAN concur.