Opinion
12883
April 4, 1930.
Before BONHAM, J., Clarendon, September, 1929. Affirmed.
Action of ejectment by A. Nimmer against L.S. Chewning. Judgment for plaintiff, and defendant appeals.
The judgment of the Circuit Court, affirmed on appeal, was as follows:
The 14th day of August, 1923, the plaintiff and defendant entered into a written contract by the terms of which the plaintiff rented to defendant a certain brick storeroom in the Town of Summerton, S.C. on the following terms: "From the first day of September, 1923, to the 31st day of December, 1923, and the said L.S. Chewning shall pay as rent for said store as above described Twenty ($20.00) Dollars per month, the same being due and payable at the end of each month; and it is further agreed that the said L. S. Chewning shall keep the said store as long thereafter as desired by him at the same rent of Twenty ($20.00) Dollars per month as long as he cares to remain in said store." The defendant has been in possession of the leased premises since September, 1923. In March, 1929, plaintiff gave notice to the defendant to vacate the premises the 1st day of May, 1929, but defendant did not vacate. In July, 1929, plaintiff again demanded possession of the premises, and, the demand being refused, he brought his action of ejectment. To the rule to show cause the defendant answered that he was in possession under the written lease of August 14, 1923; that by the terms of said lease he held a tenancy in perpetuity; or failing that, as tenant from year to year; and as such was entitled to hold until December 31, 1929. He further contended that, the title to real estate being in issue, the Magistrate was without jurisdiction to hear the proceeding. It appears from the evidence in the case that the defendant has paid no rent since May 1, 1929, and has turned over the storeroom and the merchandise and goods therein to his father, Peter Chewning. The Magistrate gave judgment for the plaintiff for the possession of the premises, holding that the tenancy created a tenancy at will. From this judgment defendant appeals, which appeal was heard by me at Manning on September 27, 1929. At this hearing counsel for defendant argued the same questions which he urged upon the attention of the Magistrate.
It is clear that the title to the premises, which are the subject of this special proceeding, is not involved; hence the challenge to the jurisdiction of the Magistrate is without force. It is equally clear that the tenancy created by the within instrument in evidence is not one in perpetuity. At first glance it might seem from the paper and from the course of business between the parties that it might be a tenancy from year to year; but after consideration I am of the opinion that it is a tenancy at will. Defendant could terminate it on proper notice; he could not be compelled to keep the premises after the termination of such notice; it follows that plaintiff must have the right to terminate it upon proper notice. It is the essential feature of a tenancy at will that each party thereto has the right to terminate it on proper notice. The Magistrate is right in his judgment.
Therefore it is ordered that the appeal be dismissed, and the judgment of the Magistrate is affirmed.
Mr. J.J. Cantey, for appellant, cites: Tenancy: 113 S.C. 212; 115 S.C. 226; 123 S.C. 350; 16 R.C.L., 98; 119 S.C. 491. Renewal: 3 A.L.R., 498; 16 R.C.L., 391: 13 A. E., 1006.
Messrs. DuRant Sneeden, for respondent, cite: As to termination of lease: 16 R.C.L., 612; 34 L.R.A. (N.S.), 1070; 24 A.S.R., 651; Sec. 5279, Code.
April 4, 1930. The opinion of the Court was delivered by
For the reasons assigned by his Honor, Judge Bonham, it is the judgment of this Court that the judgment of the Circuit Court be affirmed.
MESSRS. JUSTICES COTHRAN, BLEASE, STABLER and CARTER concur.