Staton v. Guillebeaux

• Decision Date: 27 March 1923
• Docket Number: 11171.
• Citation: 116 S.E. 443,123 S.C. 363
• Parties: STATON v. GUILLEBEAUX ET AL.
• Court: South Carolina Supreme Court

116 S.E. 443

123 S.C. 363

STATON v. GUILLEBEAUX ET AL.

No. 11171.

Supreme Court of South Carolina

March 27, 1923

Appeal from Common Pleas Circuit Court of McCormick County; Thomas S. Sease, Judge.

Action by Sim Staton against Clara Guillebeaux, as executrix of the last will and testament of Alex Guillebeaux, deceased, and another. From a judgment entered on a directed verdict for defendants, plaintiff appeals. Reversed and remanded for entry of judgment for plaintiff.

F. A Wise, of McCormick, for appellant.

Joseph Murray, of McCormick, for respondents.

MARION J.

Action in claim and delivery by Sim Staton against Clara Guillebeaux and E. B. Sharpton for the recovery of 1,700 pounds of lint cotton. The defendant seized the cotton for rent of a two-horse farm due by plaintiff to Alex Guillebeaux, payable on November 1, 1920; the said Alex Guillebeaux having died July 4, 1920. The seizure of the cotton was made November 15 1920, by the defendant E. B. Sharpton, deputy sheriff, acting under a distress warrant issued by the defendant Clara Guillebeaux, as executrix of the will of Alex Guillebeaux. The plaintiff alleged, in substance, that the seizure was wrongful and unlawful, in that the defendant Clara Guillebeaux, as executrix, had no legal right to distrain for rent falling due after her testator's death. In the answer it was admitted that the defendant Clara Guillebeaux "in distraining said cotton acted in her official capacity as executrix of the last will and testament of the said Alex Guillebeaux, deceased." On the trial in response to a question from the court, Clara Guillebeaux the executrix, testified that Alex Guillebeaux had left his property to be divided between his children and herself, the wife, but had left the rent to her. Upon the foregoing undisputed facts as to the only issues raised, the presiding judge refused a motion for the direction of a verdict in favor of the plaintiff and directed a verdict for the defendants. From judgment thereon, the plaintiff appeals.

The sole question presented is whether the personal representative of a deceased landlord has the right to assert and enforce the remedy of distress, for rent accruing or falling due after the death of the landlord. Investigation reveals, contrary to the writer's first impression, that the law in this jurisdiction requires that the question be answered in the negative. Even for rent accrued or due at the date of the decedent's death--a chose in action, the title to which unquestionably vests in the personal representative--an executor or administrator may not distrain. In the case of Bagwell v. Jamison, Cheves, 249 (1840), the law in this state was thus declared:

"At common law, neither the heirs, executors, nor administrators of a man seized and entitled to rents, had any remedy for the arrearages incurred in the lifetime of the owner of such rents. (Co. Lit. 162, a.) For remedy whereof the stat. 32 Hen. 8, c. 37, provided that the executors and administrators might distrain for rents due their testator or intestate, at the time of the death, upon the land charged with the rent; and a later statute, in England, in the time of William IV, has been found necessary further to extend this right of the representatives of a deceased landlord. But the stat. of 32 H. 8, has never been made of force here, either expressly by the Legislature, or by necessary implication; nor am I aware of any judicial decision by which it has been held to be of force, as other English statutes have been, especially on the subject of rent; and sometimes, perhaps, without sufficient reason. The remedy by distress is a rigorous proceeding, often harsh in its operation, not congenial to the spirit of our institutions and government, and not to be extended beyond the clear and settled limits, except by express enactments of the Legislature."

That the statute 32 Henry VIII, c. 37, extending the right of distress for rent to and against executors or administrators, could not be regarded as of force in this state, was again expressly declared in Salvo & Wade v. Schmidt, 2 Speers, 512 (1844), in which case Judge Butler as the organ of the court said:

"The statute never has been adopted expressly by any legislative act of South Carolina. It is not enumerated as one of the English statutes that have been made of force here; and in the case of Bagwell v. Jamison, Judge Earle says: 'It never has been adopted here, either expressly by the Legislature, or by necessary implication'; and I am under the impression, though he does not expressly say so, that Judge Wardlaw, in his thorough examination of the English statutes in relation to rents, in the case of Rogers v. Brown & Sharlock, 1 Sp. 285, came to the same conclusion."

See Rogers v. Brown, 1 Speers, 283; 24 Cyc. 1293.

The law as thus clearly and expressly announced has not, so far as we are aware, been disapproved or questioned in any subsequent adjudication. In Reid v. Stoney, 1 Strob. 182, where the will vested the executor with power to lease lands, to receive the rents, and to divide them, the opinion was expressed by Judge Evans that the executor would have a right to distrain; but the expression was really an obiter dictum, as the right of the executor to distrain was not there involved. In the case of Stewart v. Gregg, 42 S.C. 392, 20 S.E. 193, in holding that a purchaser of premises under lease could not distrain...