Broadway v. Rosen , 124 S.C. 428 ( 1923 )

May 14, 1923. The opinion of the Court was delivered by This action grew out of a distress for rent. There are six exceptions, but only one question is properly before this Court.

A man named Inabinett rented a house on Meeting Street, in Charleston, from Mrs. Florence M. Castens, for a specified term. The appellant bought the house, and Inabinett subrented to the respondent. There were some questions about the right to subrent and the amount of rent. The only question in this case is the right to distrain for rent.

The appellant landlord, on the 28th of December, 1920, distrained for rent in arrears for the months of October, November, and December, 1920. On the 26th of January, 1921, the appellant took proceedings, in the Civil and Criminal Court of Charleston, to eject the tenant from the premises. The following paper was served:

"The State of South Carolina, County of Charleston.

"To New Method Laundry: You are hereby required to show cause before the Civil and Criminal Court, at Fireproof Building, within three days from the personal service of this notice, why you should not be ejected from the premises No. 522 Meeting Street, for nonpayment of arrears of rent for said premises in the sum of $75.00, due on the 1st day of January, 1921, payment having been demanded and refused and possession having been demanded and refused, according to the act of the assembly of the State of South Carolina, passed the twenty-second day of March, Anno Domini eighteen hundred and seventy-eight.

"Witness my hand and seal this 24th day of January, A. D. 1921.

"E. Mitchell Whaley. [Seal.]"

The record shows that this verdict was rendered: "We find for the tenant."

The respondent herein claimed to have paid its rent and brought this suit for the illegal distress. The respondent offered the ejectment proceedings in evidence as res judicata as to matters involved in that proceeding. The trial Judge admitted the record and held that the proceedings in ejectment are res judicata, as stated. From this holding this appeal is taken.

The case of Nesbitt Auto Co. v. Kirby, 114 S.C. 202:103 S.E., 533, is in point:

"An action in claim and delivery is ordinarily a simple action for possession, but when the right of plaintiff is based upon a mortgage then the validity of the mortgage is necessarily involved. If the mortgage is fraudulent, it is void and no title can be derived from it. A judgment for the plaintiff for the possession necessarily includes a judgment that the mortgage is valid."

The proceedings in ejectment are brought under the act of March 22, 1878 (16 St. at Large, p. 635). The bringing of the proceedings admitted the relation of landlord and tenant, and the result fixed the fact that there was no rent in arrears. The record was admissible, and was res judicata as to those two matters.

The judgment appealed from is affirmed.

MR. CHIEF JUSTICE GARY and MR. JUSTICE WATTS concur.