Simon v. Kirkpatrick

• Decision Date: 29 September 1927
• Docket Number: 12280.
• Citation: 139 S.E. 614,141 S.C. 251
• Parties: SIMON v. KIRKPATRICK.
• Court: South Carolina Supreme Court

139 S.E. 614

141 S.C. 251

SIMON v. KIRKPATRICK.

No. 12280.

Supreme Court of South Carolina

September 29, 1927

Appeal from Common Pleas Circuit Court of Greenville County; M. M Mann, Judge.

Action by H. H. Simon against J. W. Kirkpatrick. From an order requiring plaintiff to reduce the amount of his judgment, he appeals. Affirmed.

Bowen & Bryson, of Greenville, for appellant.

Mauldin & Love, of Greenville, for respondent.

BLEASE J.

The appeal in this case is by the plaintiff from an order of new trial nisi, granted by the trial judge, Hon. M. M. Mann.

The complaint, brought in November, 1924, alleged these material facts: That plaintiff, Simon, and defendant, Kirkpatrick, on June 21, 1924, entered into a lease as to certain real estate in the city of Greenville, owned by plaintiff, for 3 years from July 1, 1924; that defendant agreed to pay as rent for the premises $150 per month for the first year, and $175 thereafter, payable on the first day of each month; that on July 1, 1924, plaintiff tendered the premises to the defendant, and plaintiff performed all the conditions of the lease on his part; that defendant did not pay any rent though demand therefor had been made, and by reason of defendant's breach of the contract he was indebted to plaintiff in the sum of $6,000.

There is a contrariety of opinion as to the nature of the plaintiff's alleged cause of action; his counsel are indefinite in their characterization of it as an action "on a certain lease"; counsel for the defendant assert that it is an action "for stipulated rental for the full period of lease, 3 years"; his honor, the circuit judge, in his charge to the jury characterized it as an action "for the alleged breach of a written contract"; in his order granted a new trial nisi, as an action "for the full 3 years' rent, based upon the premise that the contract assessed a liquidated damage by way of rental value." We think a proper construction of the complaint shows that it sets forth an action of breach of contract.

The undisputed facts are as follows:

On June 21, 1924, the plaintiff, Simon, and the defendant, Kirkpatrick, entered into a written contract, whereby Simon leased to Kirkpatrick a certain vacant lot in the city of Greenville, for a term of 3 years beginning July 1, 1924, and ending June 30, 1927, at a stipulated rental of $150 per month for the first year, and $175 per month for the second and third years. The lease contained the following provision:

"It is agreed that if there is default in the payment of the rent above stipulated for as much as 60 days after same is due, the said H. H. Simon, his attorney, or agent, shall have the right to re-enter and repossess said premises, at his option and to expel and remove therefrom the said J. W. Kirkpatrick or any other person occupying the same."

The defendant contended that he was acting as agent for another, who expected to build upon the lot, but owing to a failure of the principal's plans, neither the defendant nor his alleged principal ever went into the actual possession of the lot, although the plaintiff made the necessary preparation for the defendant's possession, and so notified him. The defendant failed to pay the rent as agreed, and on September 30, 1924, the plaintiff served upon him the following notice:

"You are due me two (2) months' rent at one hundred and fifty dollars ($150) each as of September 1, 1924, you having failed to make payment as per terms of lease, are thereby precluded from any further right or benefit thereunder."

The evidence tended to show that the plaintiff thereafter did all that could be reasonably required of him to rent or sell the property, but without success, having taken possession of it and turned it over to real estate agents for that purpose.

In November, 1924, the plaintiff instituted the present action. While it was pending, in August, 1925, 13 months after the lease went into effect (July 1, 1924), the plaintiff sold the property, and in November, 1925, the present action came on for trial before his honor Judge Mann and a jury.

His honor instructed the jury that if the plaintiff, upon certain contingencies stated, was entitled to recover at all, he was entitled to recover damages based upon the rental for the period of 13 months, from the beginning of the lease, July 1, 1924, to the date of the sale of the lot by the plaintiff, August 1, 1925, at the stipulated rates, $150 per month for the first year, and $175 per month for the second and third (this would amount to $1,800 for the first 12 months, and $175 for the thirteenth month, a total of $1,975); overruling the defendant's contention that the plaintiff, in any event, was limited in his recovery to the period between the beginning of the lease, July 1, 1924, and its termination by the plaintiff's notice of September 30, 1924, 3 months, at $150 per month, $450. The jury returned a verdict of $1,925 in favor of the plaintiff, evidently based upon the rental for 13 months, but containing an error of $50.

Thereafter upon the defendant's motion for a new trial, his honor Judge Mann passed an order declaring:

"After a careful study of the authorities cited by counsel in support of the motion now before me, I am convinced that my impressions of the law on the trial were erroneous."

He then says:

"Had Simon notified Kirkpatrick that he was holding or taking possession of the premises for the account of Kirkpatrick, it is my opinion that he would clearly have been entitled to the amount of the verdict, as, I think, the facts warranted it. The relationship of landlord and tenant would not then have been terminated and any loss resulting to Simon by reason of Kirkpatrick's breach of the contract within the 13 months could properly have been charged up to Kirkpatrick as a defaulting tenant.

But Simon elects to rely upon the authority given in the lease and evicts Kirkpatrick and precludes him 'from any further right or benefit thereunder.' The only reasonable deduction is that this act terminated the relationship of landlord and tenant between them. And is (in?) such a circumstance, the authorities available seem clear that the rent, or liability on the contract ceases."

Judge Mann ordered a new trial of the cause unless the plaintiff consented to reduce his verdict from $1,925 to $450, the last-named amount being rent from July 1, 1924, to September 30, 1924, 3 months, at $150 per month.

The appeal here is from that order.

His honor inadvertently fell into two errors in his statements in the order he made. He refers to the relationship between Simon and Kirkpatrick as being that of "landlord and tenant"; as a matter of fact, Kirkpatrick the lessee, never went into possession of the premises, and notified Simon that he did not intend to do so; as a matter of law, therefore, the relation of landlord and tenant was never consummated. The relation was that of lessor and lessee, under a written contract of lease.

"In the case of a lease for a term of years, even though the term is to commence immediately, the lessee is not regarded as a tenant until he enters upon the land, that is, until he takes possession, and until he does so he has been said to have merely an 'interesse termini,' an expression also applied to the interest of one to whom a lease is made of a term to commence in futuro." 1 Tiffany on Real Property, 114.

"No lease for years is complete until the tenant has entered upon the premises. His interest prior to such entry is termed an 'interesse termini,' or right to possession." 18 A. & E. Enc. of Law, 164.

"The relation of landlord and tenant is created by contract, either express or implied, by the terms of which one person designated 'tenant' enters into possession of the land under another person known as 'landlord.' *** Also, as has been said, 'a tenant is one who occupies the premises of another in subordination to the other's title and with his assent, express or implied."' 16 R. C. L. 530.

"The relation of landlord and tenant is not proved by the mere production of a lease in evidence, but the entry of the lessee under the lease, or a holding by him referable to the lease, must also be proved." Syllabus, Caldwell v. Center, 30 Cal. 539, 89 Am. Dec. 131.

"A lessee has no estate in the land before entering into possession, and therefore, in an action to recover possession of the lessor, he must allege an entry under the lease." Syllabus, Willcox v. Bostick, 57 S.C. 151, 35 S.E. 496.

His honor also refers to the eviction of the tenant, Kirkpatrick, by the notice of September 30, 1924, and to the repossession of the property by the landlord, Simon. For the same reason, that Kirkpatrick had never taken possession, there could not have been an eviction; and if no eviction, the lessor never lost possession, and could not therefore have repossessed it.

"In order that there be an eviction by the landlord, in the legal sense, it is necessary that the tenant no longer retain possession of the premises." 1 Tiffany, 200.

"One cannot be evicted from premises of which he has never had possession, either actual or constructive." Stiger v. Monroe, 109 Ga. 457, 34

S. E. 595.

"It would seem to be the rule that there can be no eviction without an antecedent possession by the tenant, and therefore a failure or refusal of the landlord to deliver possession of all or part of the premises leased, while a wrong for which the tenant has his remedy at law, does not amount to a technical eviction." 11 A. & E. Enc. of Law, 460.

"One cannot be evicted from premises of which he has never had possession, either actual or constructive, since there can be no technical eviction from premises without an antecedent possession by the tenant." 24 Cyc. 1130.

We think that the gist of his...