Trakas v. Mitchell

June 25, 1918. The opinion of the Court was delivered by This is an action for injunction. The complaint alleges: "(2) That M.V. Mitchell is the owner of a life estate in the property hereinafter described, and that Colonial Trust Company is a corporation, and, as plaintiffs are informed and believe, claim to be the duly constituted agent and trustee for said M.V. Mitchell, with power to collect rents coming due to her. "(3) That on the 6th day of August, 1910, the said M. V. Mitchell, in consideration of $500 paid to her by plaintiffs, made and executed to plaintiffs a lease on all that building situated on East Main street in the city of Spartanburg, between the storeroom of J.D. Collins and the storeroom of W.S. Glenn, for a term of five years, commencing January 1, 1913, at and for a monthly rental of $130, payable at the end of each month. That a copy of said lease is hereto attached, marked `Exhibit A,' and made a part of this complaint, and reference thereto is craved as often as may be necessary. That, among others, the following provision is contained in said lease: `In case default is made in the payment of monthly installments of rent for a period of twenty (20) days, it is understood and agreed that this lease may be terminated at the option of the party of the first part.' *Page 162 "(4) That the plaintiffs, on January 1, 1913, entered into possession of the said premises, under said lease, and have continued and now are in possession of the same. "(5) That on the 1st day of April, 1914, the plaintiffs leased to A.J. Bishop a portion of said premises for the monthly rental of $155, payable in advance on the first day of each month, and since that date the said A.J. Bishop has been paying to plaintiffs the said monthly rental of $155, a copy of said lease being hereto attached and marked `Exhibit B,' and made a part of this complaint. "(6) That since the commencement of plaintiffs' lease, plaintiffs have been paying the rent reserved by the same to the said M.V. Mitchell, or to different persons acting as her agents, sometimes paying the rent in advance for as much as three months. "(7) That plaintiffs sent check for the November, 1914, rent to the defendant, Colonial Trust Company, which check was turned down at the bank, and on December 22, 1914, plaintiffs received a letter, of which the following is a copy: "`Messrs. N.S. Trakas Company, Spartanburg, S.C. Dear Sirs: Your check for rent under the lease to Mrs. M. V. Mitchell has been turned down at the bank many times, and we have so notified you, and you promised on several occasions to make the same good on specified dates. As you have not done so, therefore, your rent has not been paid by the 20th of the month, as required under the said lease, and we have to notify you that the said lease covering building on the south side of East Main street, between the storeroom of J.D. Collins and W.S. Glenn, is hereby canceled. The check which you gave for the November rent must be paid by January 4th, 1915. Yours very truly, Colonial Trust Company, Trustee and Agent for Mrs. M.V. Mitchell, by T.E. Screven, President.' "(8) That after receiving said letter, the plaintiff, N.S. Trakas, for the plaintiffs, on December 23, 1914, carried to the office of the Colonial Trust Company, in the city of *Page 163 Spartanburg, $130 in money, and tendered same to Colonial Trust Company in payment of the rent for which the check was given, and said tender was refused. That on January 2, 1915, the plaintiff, N.S. Trakas, also tendered in money the rent for December, 1914, which was refused. "(9) That plaintiffs are informed and believe that the defendant, M.V. Mitchell, through the defendant, Colonial Trust Company, has notified A.J. Bishop to pay no further rent to the plaintiffs, and to pay rent to the defendant, Colonial Trust Company, for the defendant, M.V. Mitchell, and have sought to prevail upon plaintiffs' tenant, A.J. Bishop, to attorn to the defendant, M.V. Mitchell, and have collected certain rent moneys belonging to plaintiffs from said A.J. Bishop. "(10) That the defendant, M.V. Mitchell, neither in person nor by agent, made on the date when the rent fell due, nor on the last day of grace, any demand for payment of rent of plaintiffs on the demised premises or elsewhere. That the defendant, M.V. Mitchell, has not in person nor by agent made any re-entry on the demised premises so as to work a forfeiture of plaintiffs' lease, but the first intimation that plaintiffs had that the defendant, M.V. Mitchell, would seek to forfeit the lease between herself and plaintiffs was the letter hereinbefore set out. "(11) That the continued interference with the plaintiffs' tenant, A.J. Bishop, in his payment of the rent, and the repetition by defendants of the collection of rent from said A.J. Bishop, which belongs to plaintiffs, will necessitate numerous suits at law for the protection of plaintiffs' rights and the collection of plaintiffs' rents. "(12) That the defendants are not entitled to declare a forfeiture of plaintiffs' lease, plaintiffs having tendered the rent due within three days after it came due, and being now ready, willing, and able to pay the same, and bringing same into Court to be applied to said rent, together with interest on the amount due up to date of tender. *Page 164 "(13) That defendants have suffered no loss or damage which cannot be fully compensated by the payment of the amount of rent, together with interest. "(14) That the plaintiffs are entitled to relief against the claimed forfeiture of their lease from the defendant, M.V. Mitchell, and against interference with plaintiffs' tenant, A. J. Bishop, by the defendants, and have no adequate remedy at law. "Wherefore, the plaintiffs pray: "First. That defendants be enjoined: (1) From taking any further steps towards forfeiting plaintiffs' lease from M.V. Mitchell; (2) from interfering with plaintiffs' tenant, A.J. Bishop, and collecting any rent from him. "Second. That the defendants be required to accept the rent tendered. "Third. That the Court pass a decree relieving plaintiffs from the claimed and threatened forfeiture of their lease. "Fourth. And for the costs, and for such other and further relief as may be just." Upon this complaint, verified, the plaintiffs secured a temporary injunction. The defendant demurred. The demurrer was overruled, and the injunction was made permanent. There are two appeals; one from the temporary injunction, and one from the permanent injunction. There is practically no dispute about the essential facts. There is only one question that need be considered: Does the complaint state facts upon which an injunction should have been issued? The complaint states the provision of the contract for forfeiture and the facts that made it operative. Section 3509, vol. I, Code of Laws S.C. 1912, provided that, when a tenant shall fail to pay rent when the same shall become due, the landlord is authorized to apply to a magistrate and have the defaulting tenant ejected. The statute provides that, in case the tenant shall be wrongfully dispossessed, *Page 165 he shall have his action for damages. The appellant had the right to enforce the forfeiture, both by the contract and by the statute. It was error to deprive the landlord of a clear legal right by injunction. This is not an effort to enforce a forfeiture when a Court of equity may refuse its aid. It is an action to set aside a forfeiture, which is very different. If a Court of equity can relieve from all forfeitures, then there would be no effective forfeitures. Tenants who pay their rent with worthless checks do not appeal to the conscience of a Court. Both orders appealed from are reversed. MR. CHIEF JUSTICE GARY and MR. JUSTICE WATTS concur.