Dial v. Gardner , 104 S.C. 456 ( 1916 )

July 3, 1916. The opinion, reciting the above statement of facts, was delivered by Before proceeding to consider the exceptions, we will determine what issues are raised by the pleadings. The complaint alleges that the plaintiff is the owner in fee of the land in dispute, and the answer alleges title in Mrs. Florence S. Gardner. These allegations would not have been appropriate to an action of quare clausumfregit, under the rules of pleading, prevailing before the adoption of the Code, but to the old action of trespass to try title, which put the title in issue. The complaint also alleges that the defendant, W.R. Gardner, is interfering with the plaintiff's tenants, by causing them to become demoralized and dissatisfied; that they are threatening to abandon her said plantation, and are asking a reduction in rent. The complaint also alleges such facts as show injury to the plaintiff's freehold. And lastly, the complaint alleges such facts as show upon their face that the plaintiff is entitled to injunctive relief.

The first exception assigns error, on the part of his Honor, the presiding Judge, as follows:

"In refusing defendant's motion for a nonsuit, said motion being made on the ground that plaintiff could not maintain her action, in that she had alleged and proven trespasses which only affected the possession and use of certain premises, and had proven that, at the time of said trespasses, plaintiff's tenant, one Ed Workman, was entitled to said use and possession; the error of law being found in thereby holding that a landlord can maintain an action for damages against one who invades her tenant's possession."

As a general proposition, the rule is well settled that, in the case of injuries to leased premises which are in the possession of the tenant, the landlord cannot maintain an action for damages for an act which affects merely the possession. See note to cases of Blakly v. Board (N.J.), 25 Am. Eng. Annotated Cases, 119.

Quare clausum fregit was the appropriate action in such cases, before the adoption of the Code. Cannon v. Hatcher, 1 Hill 260, 26 Am. Dec. 177; Gilmore v. Roberts, 18 S.C. 551. But that principle is not applicable to the facts in this case, as the rule is equally well settled that the landlord, though the land is in possession of the tenant, may maintain an action against a stranger or tenant himself for injuries to the leased land, which injuriously affect the reversionary interest. A lessor may maintain a suit as for an injury to the reversion, when there is a continuing trespass under a claim of right, which might by time ripen into an adverse title. This exception is overruled.

The second exception is as follows:

"In charging the jury, ``When you go to consider special defenses set up in the answers, the burden is on the defendant to make out her special defenses set up in the answer, by the greater weight of the testimony.' The error of law being found (a) in instructing the jury that defendant had to prove anything, by the greater weight of the testimony, it being sufficient for her to show the same by the greater weight of the evidence — both testimony and documentary evidence; (b) in instructing the jury that special defenses such as were contained in the answer herein had to be proved by the preponderance of the testimony, the rule of law being that special defenses under special denials need not be proven by the preponderance of the evidence."

The first assignment of error cannot be sustained, for the reason that the words "testimony" and "evidence" are generally used interchangeably.

Nor can the assignment of error as to the special defenses be sustained, as the burden of proving title to the land was on the defendant. Investment Co. v. Lumber Co., 86 S.C. 358,68 S.E. 637, 30 L.R.A. (N.S.) 243.

Judgment affirmed.

MR. JUSTICE GAGE did not participate in the consideration of this case.