Stewart-Jones Co. v. Shehan

• Decision Date: 07 February 1924
• Docket Number: 11415.
• Citation: 121 S.E. 374,127 S.C. 451
• Parties: STEWART-JONES CO. v. SHEHAN.
• Court: South Carolina Supreme Court

121 S.E. 374

127 S.C. 451

STEWART-JONES CO. v. SHEHAN.

No. 11415.

Supreme Court of South Carolina

February 7, 1924

Appeal from Common Pleas Circuit Court of York County; T. J Mauldin, Judge.

Summary proceeding by the Stewart-Jones Company against R. L. Shehan. From a judgment of the circuit court ruling that the magistrate was without jurisdiction of the proceeding plaintiff appeals, and from an order settling the case for appeal, defendant appeals. Exceptions overruled, cost of printing the case on appeal divided, and judgment of circuit court affirmed.

Dunlap & Dunlap, of Rock Hill, for appellant.

Wm. J Cherry, of Rock Hill, for respondent.

MARION J.

Appeal from an order of his honor, T. J. Mauldin, circuit judge, overruling the issuance by a magistrate of a warrant directing dispossession of an occupant of real estate in a proceeding sought to be maintained under section 3509, Civ. Code 1912, now section 5279, vol. 3, Code 1922.

The facts giving rise to the controversy appear to be substantially as follows:

The Stewart-Jones Company, a corporation, the appellant here, brought action, presumably in the circuit court, against one D. B. Hankins, and on August 5, 1922, attached a house and lot in Rock Hill as the property of Hankins. Judgment by default was recovered in that action, and the house and lot were sold by the sheriff under execution. The Stewart-Jones Company bought this property at the sheriff's sale, and received a deed therefor, dated November 13, 1922. Thereafter Stewart-Jones Company instituted this proceeding in a magistrate's court to eject R. L. Shehan, the respondent here, from the premises so conveyed to it by the sheriiff's deed, alleging that the plaintiff was the owner of the premises, that Shehan was in possession and was holding over the said premises, that he had failed and refused to pay rent after demand, and that demand for the possession had been made. Shehan demurred to the complaint. The magistrate overruled the demurrer, and Shehan then answered, denying that the plaintiff was the owner or was ever in possession of the premises, or that the relation of landlord and tenant had ever existed between plaintiff and defendant, by contract or otherwise, and alleging that the premises were owned by Mrs. D. B. Hankins, under whom he had been in occupation of the premises as tenant from August 1, 1922, and to whom he had paid the rent in full to January 1, 1923. Shehan adduced evidence tending to establish the facts set out in his answer. No evidence was adduced to establish that the Stewart-Jones Company was ever in actual possession of the premises, or that Shehan, as tenant, had ever attorned to said company or to D. B. Hankins as landlord.

On appeal from the magistrate's judgment the circuit judge held, in substance, that it appeared on the trial from the plaintiff's own showing that the title to real property was in question, and that such title was disputed by the defendant, and hence that the magistrate was without jurisdiction. Code Civ. Proc. 1922, § 225. From the judgment based on that ruling, the plaintiff appeals. From an order settling the case for appeal, the defendant appeals.

Plaintiff's Appeal.

The three exceptions advance substantially the one proposition that--

"The question of title cannot be so raised in a summary proceeding as to oust the magistrate of jurisdiction, and can only be an issue as to whether the defendant has shown sufficient cause as to why he should not be ejected."

That contention is based upon the decisions of this court in State, etc., v. Fickling, 10 S.C. 301; State, etc., v. Marshall, 24 S.C. 507; State, etc., v. Fort, 24 S.C. 519; Swygert v. Goodwin, 32 S.C. 148, 10 S.E. 933, etc. The ruling relied on is thus stated (Willard, C.J.) in State ex rel. O'Neale v. Fickling, supra:

"The proceeding sought to be asserted was brought by the respondent D. Utley before the respondent F. W. Fickling, as trial justice, to eject the relator, L. A. O'Neale, from certain premises alleged to be held by her as tenant at will of the said Utley. The relator joined issue on the petition, denying the existence of a tenancy at will, alleging want of title in the petitioner and title in herself. The petition was filed under section 12, c. 84, of the General Statutes, p. 435. The first ground of appeal is for error in holding that the proceeding was not an action. The section in question was enacted prior to the adoption of the Code of Procedure, at a time when it could not in any sense be regarded as an action, nor is anything pointed out in the Code that can have the effect of changing its nature. If the jurisdiction conferred by the statute in question is to be regarded as constituting an action, then, under section 74 of the Code it is denied to a trial justice. That this was not intended is evident from the fact that this section was reenacted as part of the General Statutes after the Code took effect. It follows that subdivision 2 of section 81 of the Code, that excludes trial justices from the cognizance of 'civil actions' where the title to land is in question, is inapplicable to the case. * * * The third ground of appeal is that it appeared on the face of the return that the relator was not a tenant at will of the respondent, D. Utley. It was for the trial justice to ascertain by proofs whether the relation of landlord and tenant existed between the parties, and, if a tenancy existed, whether it was of the character that the statute required."

In the case of Swygert v. Goodwin, supra, the court (Simpson, C.J.) said:

"It has been decided in several cases in this state, * * * that trial justices had jurisdiction of such cases, and that raising the question of title did not oust that jurisdiction;" etc.

The cases cited, however, were decided before the adoption of the Constitution of 1895, and the reason assigned for the ruling, viz. that the limitation upon the jurisdiction of trial justice imposed by the Code applied to "actions" only, and not to special proceedings, would seem to be no longer tenable in view of the provision of the present Constitution (article 5, § 21) that the jurisdiction of magistrates shall not extend "to cases where the title to real estate is in question."

But we think the ruling may be substantially adhered to without infringement of the present constitutional provision. The rule may be rested and soundly grounded upon the perfectly valid assumption that the issue of title cannot properly arise in such a proceeding, for the reason that the proceeding contemplated and authorized by the statute is one by a landlord against a tenant who is estopped by that relationship to deny his landlord's title, 16 R. C. L. p. 649, § 137; Whaley v. Whaley, 1 Speers, 225, 40 Am. Dec. 594; Givens v. Mullinax, 4 Rich. 590, 55 Am. Dec. 706; section 5279, vol. 3. Code 1922. The language of the statute (section 5279, Code 1922) is as follows:

"In all cases where tenants hold over after the expiration of their lease or contract for rent, whether the same be in writing or by parol, or shall fail to pay the rent when the same shall become

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