Morris v. Palmer , 44 S.C. 462 ( 1895 )

The opinion of the court was delivered by

Mr. Chief Justice McIver.

In this case the plantiff, on the 27th January, 1895, instituted proceedings under section 1938 of the Revised Statutes of 1893, to eject defendants from the possession of certain premises belonging to plaintiff, upon the ground that they were in possession as tenants at will only. The case below turned upon the question as to whether the defendants, or rather, the principal defendant, Palmer (the other defendants being probably his employees), was a tenant at will of plaintiff. Upon hearing the return to the rule to show cause, the trial justice held, substantially, that Palmer was not a tenant at will, and refused to issue his warrant for the ejectment of said Palmer. Thereupon the plaintiff applied for and obtained from his honor, Judge Buchanan, a writ of certiorari, requiring the trial justice to certify to him all the proceedings in the cause. To this writ, the trial justice made his return and amended return, as set forth in the “Case;” and the case was heard by the Circuit Judge upon said return, who rendered the judgment set out in the “Case,” affirming the action of the trial justice, and dismissing the writ of certiorari. From this judgment plaintiff appeals upon, the several grounds set out in the record, which, together with the return of the trial justice and the judgment of the Circuit Judge, should be incorporated in the report of the case.

1 The facts, as found by the trial justice, may be stated substantially as follows: That plaintiff, being the owner of the premises in question, duly executed a lease in writing with one Gibert for the lease of said premises for the term of two years, ending on the 31st December, 1895, said lessee to have the refusal of the premises for another term at the expiration of said lease; that after the execution of said lease, the said Gibert rented said premises to the defendant, Palmer, upon certain terms which were duly complied with, and executed to said Palmer, in writing, an assignment of his lease from plaintiff, with the knowledge and consent of the plaintiff, as the testimony of the plaintiff himself shows; that after this trade or transaction between Gibert and Palmer, the plaintiff and Palmer agreed to enter into a lease identical with that of the plaintiff and Gibert, and a lease was so drawn and signed by Palmer and turned over to plaintiff, who promised to sign it but never did so; and that the defendant went into possession of the land under his contract with Gibert. These findings of fact by the trial justice are, in ceríiorari proceedings, final and con-elusive both upon the Circuit Judge and this court. State ex rel Sawyer v. Fort, 24 S. C., 510, recognized and followed in Charles v. Byrd, 29 Id., at page 558.

2 One of these findings of facts, to say nothing of other points in the ease, to wit: that Palmer went into possession of the land under his contract with Gibert, is absolutely con-elusive of the correctness of the conclusion reached by the trial justice, and concurred in by the Circuit Judge. For section 1938 of the Eevised Statutes reads as follows: “When any person has gone, or shall hereafter go, into possession of any laud of another, either as a tenant at will or under a contract to serve, either as a common laborer or otherwise, &c.” The remedy provided for by that section may be applied for and obtained whenever such person shall refuse or neglect to quit the premises so occupied, when required by the person letting the same.” Now, under such finding of fact, it is very certain that Palmer did not go into possession of the premises as the tenant at will of the plaintiff, but, on the contrary, he went into possession under his contract with Gibert, and hence the provisions of that section do not apply.

It will be observed that this is a special statutory provision of a somewhat stringent and summary character, and, under the well settled rule, can only apply to cases falling strictly within the terms of the statute. It cannot, therefore, be applied to a case where a person has not gone into possession as a tenant at will, or under a contract to serve as a domestic servant or common laborer, or otherwise; but to render this section applicable, it must be shown that the person to whom it is sought to be applied has gone into possession as a tenant at will, &c. If the person goes into possession as a trespasser, then the remedy provided by section 2432 of the Eevised Statutes must be resorted to; or if he undertakes to hold over after the expiration of his lease, then there are other sections of the Eevised Statutes which afford appropriate remedies. So that, even if we were disposed to hold, under the evidence in this case (as we must say that we are not inclined to do), that the abortive agreement to enter into a lease between the plaintiff and the defendant, after the latter had gone into possession under his contract with Gibert, had the effect of converting the defendant into a tenant at will of plaintiff, the provisions of the statute under which this proceeding was instituted would not apply, for the reason that the facts do not bring this case within the terms of that statute.

3 We need not, therefore, enter into any inquiry as to the effect of the agreement between plaintiff and defendant to enter into a new lease, identical in terms to that to Gibert, which had been duly assigned to Palmer, with the plaintiff’s consent, which had not only been drawn but actually executed by the defendant, but not signed by the plaintiff simply because he failed, without any reason or excuse, so far as appears, to keep his promise to sign it. For if, as claimed by appellant, his failure to sign the new lease rendered it absolutely void, then the whole attempt to enter into a new contract between plaintiff and defendant must be regarded as having failed, and the defendant must be considered as being in possession, as assignee of the lease to Gibert, and entitled to hold the same, at least until the 31st day of December, 1895. Surely the appellant cannot be permitted to claim the benefit of a part of the arrangement made with defendant and repudiate the other part, which failed of legal effect simply because of plaintiff’s unexplained refusal or neglect to sign the new lease after promising to do so. He cannot be permitted to say that the parol agreement to enter into a new lease not having been reduced to writing, and signed by the parties, had the effect of constituting the defendant a tenant at will, when the undisputed evidence shows that such agreement was put in writing and actually signed by one of the parties, and not signed by the other — the appellant himself — -simply because of his unexplained refusal or neglect to keep his promise to do so. The whole arrangement for a new lease must either be entirely ignored or it must be regarded as having been carried into full force and effect according to the manifest intention of the parties at the time. Any other view would, it seems to us, be subversive of every principle of law and justice, and cannot be sanctioned by this court. We think, therefore, that in view of the case, the judgment appealed from must be sustained.

The judgment of this court is, that the judgment of the Circuit Judge be affirmed.