20 S.C. 481 | S.C. | 1884
The opinion of the court was delivered by
Irvine Davenport leased land from Hewlet Sullivan for the year 1882, for which he gave an obligation, of which the following is a copy:
“ $80. On or by the 1st day of November next, I promise-to pay H. Sullivan, or order, eighty dollars, the same being for-the rent of the place I now live on; and I further promise and agree to take good care of the premises and houses, &c., and return the same to said Sullivan at the end of this year. This. 21st August, 1882.
“"Witness my hand and seal.
(Signed,) “IRVINE DAVENPORT, [l. s.]
“ Test — Chaeles D. Smith.”
Afterwards, the property was sold by the constable, but he refused to pay the balance of his rent to the plaintiff, who then brought this action against him before trial justice J. M. Cure-ton ; and he gave judgment in favor of the plaintiff for $23. The defendant appealed to the Court of Common Pleas, and Judge Witherspoon reversed the judgment. From his judgment, the plaintiff appeals to this court, upon the following grounds : “1. Because the defendant, having induced the plaintiff to forbear enforcing his landlord’s lien by the promises made to him, is estopped from denying his liability in this action. 2. Because the plaintiff had a lien upon the specified property levied upon by the defendant, which followed the proceeds of the sale of said property into the hands of the defendant, and made him liable in this action. 3. Because the defendant, as constable, had no right to take the corn by virtue of any execution, unless the party at whose suit said execution was sued out had paid to the plaintiff in this action the rent then due him as landlord, and was therefore liable to the plaintiff in this action.”
It does not appear precisely when the levy was made, but as there was no allegation that the rent was not due, we suppose it was after November 1st, 1882. There is nothing in the objection that the plaintiff, Sullivan, is not entitled to the rights of a land
The plaintiff, as landlord, clearly had an agricultural lien on one-third of the crop made on the premises leased, (16 Stat 411; Carter v. DaPre, 18 S. C. 182,) but such a lien can only be enforced according to the machinery provided by the statute itself, viz., through a warrant issued by a clerk of the court against the crop itself in specie, and not against the proceeds of the crop. Kennedy v. Reames, 15 S. C. 550. It appears that the plaintiff, misled by the assurances of the defendant that the rent claimed should be first paid, pretermitted his right to have the crop itself seized before it was sold; and it is-now insisted that he cannot enforce that lien against the money, the proceeds of sale. This may be so, and in this, the defendant certainly misled the plaintiff to his injury. But from the view which the court takes, it will not be necessary to consider the question whether the constable is personally liable and estopped from making a defense. He is a mere stakeholder and possibly was required by the creditors, in whose behalf he levied the property, to make the defense for their benefit. If recovery is had, it must be paid out of the money officially in the hands of the constable, and, therefore, we will regard the defense as actually made by the judgment-creditors.
Assuming, then, that he was deceived into an inactivity which practically lost him the benefit of his agricultural lien, we think that the plaintiff, as landlord, had another right entirely distinct from his agricultural lien on a part of the crops made on the leased premises. A landlord had the right to distrain for rent in arrear under our law, as it existed down to 1868, when distress for non-payment of rent was abolished. 14 Stat. 106. In 1878 the law was restored as it formerly existed, with the single exception that no property could be taken except such as belonged to the tenant in his own right. 16 Stat. 511; Mobley v. Dent,
The plaintiff having given notice of his claim for rent, the duty of Ellison, the constable, was, in accordance with his declarations and promises made before the property was sold, to retain out of the proceeds of sale so much as was necessary to pay to the plaintiff first the balance due him for rent of that year. Hamilton v. Reedy, 3 McCord 39. See the Matter of F. W Connor, Landlord, 12 Rich. 350. The constable violated his duty, damaging the plaintiff to the extent of the balance of rent, $23, and Trial Justice Cureton was right in giving judgment against him for that amount.
It is insisted that the trial justice had no jurisdiction in the matter. It was “ an action for damages for injury to rights pertaining to personal property.” See Paragraph 2, Section 71 of the Code.
It is said the plaintiff should have applied to the Circuit Court for a rule on the respondent. Perhaps he might have done so, but he had no status in that court, and we do not see why he
The judgment of this court is that the judgment of the Circuit Court be set aside and that of the trial justice affirmed.