42 S.C. 392 | S.C. | 1894
The opinion of the court was delivered by
This was an action to recover possession of sundry articles of personal property alleged to have been unlawfully taken from the possession of the plaintiff by the defendants. The defendants justified the taking under a distress warrant for rent. The following facts seem to be undisputed: On the 12th day of November, 1889, the plaintiff leased from one M. A. Bowen a certain tract of land, the latter agreeing in the lease t.o furnish two mules for cultivating said place, for the term of three years, commencing on the 1st day of January, 1890, the lessee agreeing to pay to the lessor “as rent for the same” 5,400 pounds of lint cotton annually, to be delivered on or before the 15th day of October in each year during the currency of the lease. There is no copy of this lease incorporated in the “Case,” but as the same was offered in evidence, the court at the hearing, under the rule, called for a copy of the lease, which was furnished, and is herewith filed. On the 4th day of January, 1892, the premises leased, along with olher
On the 14th of October, 1892, the plaintiff delivered to the said M. A. Bowen eight bales of cotton on account of the rent for that year. Learning of this, the defendant Graham, through his agent, issued his distress warrant, addressed to his codefendant Gregg, authorizing and requiring him “to make distress of all goods and chattels of the said A. S. Stewart, so that you may collect 4,710 pounds of lint cotton, in merchantable condition, of the value of the sum of $345.50-100, for rent in arrears and due me on the 15th day of October, 1892.” Under this warrant the said Gregg seized the property sued for in this action, and the same was afterwards replevied by the plaintiff. There is some conflict in the testimony as to what passed between the plaintiff and the agent of the defendant Graham, when the latter called upon the former in February, 1892, soon after the sale, as well as in a subsequent interview between those parties in June, 1892, which, under the view we take of the case, need not be stated. It appears from the testimony that before the distress warrant was issued, some calculation was made by the attorney of Graham with a view to ascertain the amount due Graham for rent of the land, in which, after deducting so much cotton as would pay for the rent of the mules, estimated at $50, the balance of the 5,400 pounds of cotton, to wit: 4,710 pounds, valued at something less than eight cents per pound — the amount cotton was understood to be worth on the 15th of October, 1892 — would produce the amount stated in the distress warrant, viz: $345.50.
After the testimony was closed, the plaintiff submitted certain requests to charge, and the Circuit Judge, without passing upon these requests specifically, proceeded to charge the jury
The cases of Moore v. Turpin & Powers and Snyder ads. Riley, supra, cited and relied upon by respondents’ counsel, were both actions for use and occupation, and there is nothing in either of them which warrants the idea that a purchaser of leased premises can distrain for rent accruing after his purchase, though he may maintain an action for use and occupation. Counsel for respondent also relies upon certain language found in the opinion of the court in Reid v. Stoney, 1 Strob., at page 188; but the point we are considering was not made, and did not arise, in that case, and, therefore, the remark relied upon cannot be regarded as anything more than obiter dictum, if, indeed, it is even that. In that case the premises had been leased to one Thompson by Samuel Beid in his lifetime, who, by his will, directed that his estate be kept together during his wife’s lifetime, and after her death to be divided between his children, one of whom was the plaintiff and the other the wife of defendant Stoney. The parties undertook, by agreement, to malee an informal partition, -which, however, the Court of Equity refused to confirm, whereby the estate was to be divided into three parts — one to the -widow for life, and one to each of the children; the storehouse being on the portion assigned to Mrs. Stoney. Thompson, the lessee of the storehouse from the testator, sold the stock of goods therein to the plaintiff, who took possession, and the same were soon after seized by Stoney, who undertook to justify his seizure of the goods under his distress warrant. The court held that the husband of a minor, daughter of the testator, has no right, under a title derived from an informal partition of the estate, unconfirmed by the Court of Equity, to distrain for rent due the estate; and that the execu
It is very manifest that no such question as we are considering arose in that case. In delivering the opinion of the court, his honor, Judge Evans, uses the language quoted by respondents’ counsel, as follows: “Without the legal estate, he could not distrain for rent due by one who did not enter under him, and who was in no way liable to him, unless the estate of the original landlord had been assigned to him.” Now, whether the learned judge intended the words which counsel has italicized as above to convey the idea that the defendant could not dis-train unless the legal estate had been assigned to him, or only meant to say that the tenant would be in no way liable to him unless the legal estate had been assigned to him, is at least questionable; and judging from the well known fact that Judge Evans was noted for his familiarity with the decisions of our court, we think there is more reason to say that he only meant the latter and not the former, for the presumption is that he was familiar with the decisions of Jacks v. Smith and Smith v. Sheriff of Charleston, cited above, which showed the law to be that a purchaser from a landlord could not distrain for rent, although the tenant would be liable in an action for use and occupation to such purchaser. But whether he meant the one thing or the other is immaterial, for certainly a mere passing remark of this kind cannot be regarded as sufficient to overturn two solemn decisions of the court of last resort.
We think that the Circuit Judge erred in refusing plaintiff’s first request to charge, and in charging that Graham had the right to distrain for rent.
Here clearly was an element of uncertainty as to the amount of the rent of land, for which alone could the defendant distrain even under his own view of the law. Who was to determine what portion of the 5,400 pounds of cotton was due for the rent of the land and what portion for the mules? Surely the defendant had no right to determine this question, as he assumed to do. The defendant does not pretend to claim anything for the rent of the mules, and could not do so, for he never bought the mules. All that he does claim, and all that he can by any possibility claim, is so much of the 5,400 pounds of cotton as was due for the reDt of the land; and what that amount is remains absolutely uncertain. So that to say nothing of what may be due for the use of the molasses mill, which the plaintiff was allowed, without objection, to testify constituted a part of the consideration for the lease, although it is not mentioned in that instrument, and resting our conclusion solely, upon the terms contained in the written lease, it is clear that there was such an uncertainty as to the amount reserved for the rent of the land, as would forbid the defendant from enforcing the payment of the same by distress. While, therefore, the defendant Graham, as the assignee, practically, of so much of the lease as secures
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.