Bamberg Banking Co. v. Matthews

The opinion of the Court was delivered by Mr. Justice Cothran. Proceedings in ejectment under section 5279, vol. 3, Civil Code of 1922, by Bamberg Banking Company, as landlord, against Addie Matthews, as tenant, before a magistrate. The alleged tenant raised the objection in her return that, the title to the land being involved, the magistrate was without jurisdiction, and, further, that the proceeding was *132 brought under the wrong section of the Code; that it should have been brought under section 5277, instead of 5279. Her contention was that the land belonged to herself and others as tenants in common, and that the paper which she signed, purporting to be a lease from the bank to her for the year 1922, was obtained by duress and fraud. At the hearing before the magistrate, the tenant demurred to the “petition in ejectment,” as it was termed, upon the ground that it was “founded upon a written lease which * * * has expired and * * * that the proceeding should have been brought under section 3507 (5277), which allows her the right to be tried before two magistrates and 12 jurors.” The demurrer was overruled. There was no denial of the facts stated in the “petition,” and no evidence was offered by the tenant in support of her allegation of fraud; nor did she attempt to comply with section 221 and 222 of the Code of Civil Procedure (1922), prescribing the method of raising the issue of title in an action in the magistrate Court. The magistrate decided in favor of the landlord. The tenant appealed to the Circuit Court solely upon the ground that the proceeding had been brought under the wrong section. The Circuit Court dismissed the appeal, and the tenant has appealed to this Court, and by exceptions raises the two questions: (1) Should the proceeding have been dismissed upon the ground that the title to the land was involved, and that the magistrate was without jurisdiction? (2) Was the proceeding brought under the wrong section ? As to the first question: The appellant is not in a position to raise this question, as she did not comply with the procedure prescribed in sections 221, 222, Code Civ. Proc, 1922. And, even if she had, under the very recent case of Stewart-Jones Co. v. Shehan, 127 S. C., 451; 121 S. E., 374, her contention could not have been sustained. In that case it is decided that, as the ejectment *133 proceedings are applicable only to a case where the relationship of landlord and tenant exists, the preliminary question of the existence of that relation is one of fact for the determination of the magistrate, when either party raises the question of title dependent upon such preliminary inquiry. As the Court says: “Hence the question of fact, to be resolved by the magistrate, and to the determination of which he is of necessity limited when the question of title is sought to be raised, is this: Was there a contract between the parties, express or implied, which created the relation of landlord and tenant?” At the hearing before the magistrate the tenant made no denial of the execution of the lease from the bank to her, and offered no evidence in support of her allegation of duress and fraud. The relation of landlord- and tenant was therefore necessarily established, and, as the tenant is not allowed to dispute the landlord’s title, the issue of title did not and could not arise. As to the second question: That the landlord should have proceeded under section 5277, instead of 5279. That the landlord may have proceeded under section 5277 is no reason why he should not invoke the simple and more summary method provided in 5279, if the facts authorized it. The question whether or not section 5279 covers the present case is to be determined by the allegations of the application for ejectment and the facts proved. The application avers that the defendant was a tenant of the land belonging to the bank for the year 1922; that the lease terminated on December 31, 1922; that she had paid no part of the stipulated rent; that she was holding over after the termination of the lease; that possession had been demanded and refused; and every element was either proved or admitted. This fully meets the requirement of the statute. This proceeding appears to be an offshoot of the case of Bamberg Banking Co. v. Matthews, 118 S. C., 83; 109 S. E., 550. *134 The Circuit Judge was right in dismissing the appeal, and his order is affirmed. Mr. Justice Marion and Mr. Acting Associate Justice R. O. Purdy concur.