Bamberg Banking Co. v. Matthews ( 1925 )

This is a proceeding commenced before a magistrate, to eject a tenant for nonpayment of rent. The appellant made a return, claiming that the lease under which the respondent claimed was void for fraud and duress, and claimed title in herself; that she was merely a tenant in common with others, and that she is in possession by inheritance and not by virtue of the lease set up by the respondent.

There is only one question that requires consideration by this Court, to wit: Is the appellant estopped to dispute the title of the bank? The answer is that she is not estopped. The question of title is certainly involved. If the contract or contracts under which the bank claims were obtained by duress or fraud, then they are void, and the title is still in the appellant. There is nothing in the record to show that the appellant went into possession under the bank. The rule is that tenant cannot go into possession under a landlord, and then put the man from whom he obtained his possession on proof of his title. The rule that a tenant cannot dispute his landlord's title is not absolute. In Eller v. Motley,99 S.C. 29; 82 S.E., 993, we find:

"While it is a general rule that one who enters under the title of another is estopped from denying it, there are some exceptions."

See, also, Mitchell v. Allen, 81 S.C. 347; 61 S.E., 1089:

"If a person even enters into pessession of land under another, and the person under whom he entered is also in possession, the doctrine that he cannot dispute the title of the person permitting him to enter without surrendering possession, does not apply, where there has been a disclaimer of tenancy, unequivocal notice of that fact to the person under whom he entered, and a subsequent adverse possession for the statutory period. Nor does it apply when there has been an adverse holding for a length of time sufficient to raise the presumption of a grant. McCutcheon v. McCutcheon,77 S.C. 129; 57 S.E., 678 [12 L.R.A. (N.S.), 1140]."

See, also, Washburn on Real Proprety, vol. 3, p. 98:

"If one enters upon land under an executory contract with another, he will be estopped to deny the title of the latter, as it would be a violation of good faith to obtain possession under such an agreement, and then to deny the right of the other party to reclaim the possession, or the fruits of the contract."

The respondent claims that this question was not made on appeal in the Court of Common Pleas. This is a question of jurisdiction of the subject matter and may be raised at any time. The question of title is involved, and the magistrate had no jurisdiction.

In State ex rel. O'Neale v. Fickling, 10 S.C. 303, it was held that, while the magistrate had no jurisdiction in actions where the question of title was raised, it did not apply to "statutory proceedings." Our people were not satisfied with that condition, and when the Constitution of 1895 was adopted they deprived the magistrates of jurisdiction in "cases" where the title was involved. They did not intend to allow the magistrate in any "case," whether actions are statutory proceedings, to oust a man from the possession of his real estate and throw upon him the burden of proving his title. The cases decided before the Constitution of 1895 do not apply and are no longer authority.

The question is one of jurisdiction, and the Legislature has no power to confer jurisdiction, where the Constitution forbids it, on the magistrate for the doing, or failure to do, anything. The tenant was not required to prove fraud before the magistrate. That would have allowed the magistrate to try the case, which he had no jurisdiction to do.

The judgment appealed from should be reversed.

MR. CHIEF JUSTICE GARY concurs.

NOTE. — The foregoing opinion, prepared by the late Mr. Justice Fraser, is adopted by Messrs. Chief Justice Gary and Justice Watts; the opinion pro forma being presented by Mr. Justice Watts as a dissenting opinion in the case.