Summary Proceedings—Notice—Appeal—Bond —Vendor and Purchaser.
1. Under Laws 1894, p. 823, authorizing appeals in summary proceedings, and providing that an appeal shall stay proceedings, on the tenant giving bond to pay the landlord all damages he may sustain thereby, a party may appeal without giving bond.
2. A person in possession of land under a contract of purchase cannot be dispossessed in summary proceedings, though the contract provides that on default in payment the purchaser shall hold as tenant, where the vendor has waived such provision.
3. A notice in summary proceedings merely alleging that plaintiff is the executor of the deceased owner does not sufficiently show his right to bring such proceedings.
4. A notice in summary proceedings must clearly show on what ground the proceedings are instituted.
Appeal from common pleas circuit court of Laurens county; I. D. Witherspoon, Judge.
Summary proceedings by John W. Carlisle, as executor, etc., against H. G. Prior. From a judgment of the circuit court affirming a judgment for plaintiff, defendant appeals. Reversed.
The notice referred to in the opinion was as follows:
"To H. G. Prior, Defendant: Complaint having been made unto me by John W. Carlisle, as executor of the will of Simpson Bobo, dec'd, that you, H. G. Prior, are now in unlawful possession of all that lot, tract, piece, or parcel of land, situated in the said county and state, containing one hundred and seventy acres, more or less, and bounded by lands of ——, which said tract of land belongs to the said estate, and of which you have been a tenant at the will of the plaintiff herein, and that you have refused and neglected to pay rent, and that you have refused and neglected to quit the possession of the said premises and surrender possession of the same to the plaintiff, although you have been legally notified so to do, and your lease has long since expired: These are therefore to command you to show cause before me, at my office at Laurens, S. C, within three days from the date of the personal service of this notice, at 11 o'clock a. m. on the third day, exclusive of the day of service, why you should not be dispossessed of the said land and premises, and the same be delivered to the said John W. Carlisle. Witness my hand and seal this the 18th day of March, 1896. John M. Hudgens, Magistrate, L. C, S. C. [L. S.]"
The order of Witherspoon, J., was as follows:
"This is a proceeding to dispossess the defendant of a certain tract of land, under an •act approved January 5, 1895, p. 823. The defendant having failed to show to the satisfaction of the trial justice, now magistrate, sufficient cause why he should not be dispossessed, the magistrate issued his warrant to have the defendant ejected from said premises. From said judgment of the magistrate court the defendant appeals to this court, upon several grounds set forth in the notice of appeal. The act above referred to gives the right of appeal, 'which appeal shall stay further proceedings upon the tenant's entering into bond to pay the landlord all damages which he may sustain thereby.' The defendant (appellant) failed to comply with the provisions of the act, and upon this ground, if no other, it seems to me that the appeal should be dismissed. But, if the defendant (appellant) fail to give bond as required by the act, it does not operate as a forfeiture of defendant's right of appeal under said act. I do not think that the appeal can be sustained upon any of the grounds set forth in the notice of appeal. Appellant's counsel contends that the magistrate was without jurisdiction in the premises, as the legislature had failed to prescribe and define the limits of the jurisdiction of magistrates in civil cases under the constitution ratified December 4, 1895. I cannot concur in this view. It seems to me that section 10 of article 17, and subdivisions 3 and 6 of section 11 of the same article (17), was intended to authorize magistrates to discharge the duties there discharged by trial justices until the legislature should define the duties of magistrates, —an office created by the new constitution. See, also, section 20, art. 5, of the constitution of 1895. It is further contended that under section 21 of article 5 the magistrate was without jurisdiction, as the title to the real estate was involved. The testimony clearly shows that the defendant (appellant), in writing, admitted that he held possession of the land as tenant, and he cannot, therefore, dispute the title of his landlord, Simpson Bobo. The statute of limitations and adverse possession were also relied upon by the defendant, but I do not think either grounds can avail the defendant, after his admission of his tenancy. The location of the land in the summons or notice served upon the defendant is not definitely described, but the testimony shows that it is the land upon which the defendant (appellant) resides. The summons, rule, or notice served upon the defendant, so far as the locus in quo is concerned, will stand amended so as to make the description of the locus in quo conform to the testimony by showing the land in dispute to be the land upon which the defendant (appellant) resides. It is ordered and adjudged that the defendant's appeal be dismissed, and that the cause be remanded to the magistrate from whose judgment the appeal was taken, for such further proceedings as may be authorized by law."
The following are the exceptions:
"Take notice that the defendant intends to appeal to supreme court from the order of his honor, I. D. Witherspoon, made in this case on August 11, 1896, upon the following grounds: (1) Because his honor erred in holding that defendant's appeal should be dismissed because he did not enter into bond to pay the landlord all damages which he may sustain thereby. (2) Because he erred in holding that the magistrate had jurisdiction in the premises, when the legislature had not prescribed and defined the jurisdiction of magistrates. (3) Because he erred in holding that section 10 of article 17, subdivisions 3 and 6 of section 11 of same article, and section 20 of article 5 of the constitution of 1895, authorized magistrates to discharge the duties of trial justices until the legislature should define their duties. (4) Because he erred in not holding the magistrate had no jurisdiction when the title to real estate is in question. (5) Because he erred in holding that the testimony showed that the defendant held possession of the land as tenant of Simpson Bobo, and that he could not dispute his title. (6) Because he erred in holding that neither the statute of limitations nor adverse possession could avail the defendant. (7) Because he erred in holding and directing that the summons, rule, or notice stand amended by inserting therein description of the locus in quo. (8) Because he erred in not holding that the summons, rule, or notice served upon the defendant did not state facts upon its face, jurisdictional or otherwise, sufficient to confer jurisdiction in this proceeding. (9) Because he erred in not holding that the plaintiff, as executor, has no power to institute this proceeding. (10) Because he erred in not holding that the testimony established no relationship between defendant's and plaintiff's intestate, unless it be...
