State ex rel. Sawyer v. Fort

1. Under the grant of powers by the constitution to the Supreme Court, that court can, under its writ of certiorari, inquire only as to the jurisdiction of the inferior court {Ex parte Childs, 12 S. C., Ill); but the Court of Common Pleas, under the same writ issued by that court, can also review errors of law apparent upon the record; but not errors of 2. In proceedings to eject a tenant at will holding over {Gen. Stat., 11818), findings of fact by the trial justice are final, and cannot be reviewed under any process. 3. Under a writ of certiorari issued by the Court of Common Pleas, that court has the power to determine, as matter of law, the construction of a written agreement; and having construed it as not creating the relation of tenancy at will, it has the power to restrain the order of the tidal justice based upon a contrary construction. 4. Where a tenant rents land for a year, and agrees to surrender possession at the end of the year, but continues in possession for two years longer, it is not a tenancy at will; and, therefore, in such case a trial justice has no jurisdiction, under section 1818 of the General Statutes.

Before Kershaw, J., Lexington, June, 1885. The tenancy in this case was under the following agreement : State oe South Carolina, County of Lexington. These presents are known as such; Wm. Fort, now deceased, purchased a tract of land at sheriff’s sale, sold as the estate land of George Sawyer, deceased, February 7th, 1870, and sold the same to George Sawyer and John W. Sawyer, on condition that they pay him the sum of twenty-five hundred dollars, with interest from 7th July, 1870, interest to be paid annually; and whereas the said George Sawyer and John W. Sawyer are unable to pay the said Wm. Fort for the same, we, whose names are signed to this instrument, make this agreement, and we desire to have a. settlement without litigation or suits at law. I, H. Arthur Fort, administrator of the estate of Wm. Fort, do hereby certify and agree that if George Sawyer and John W. Sawyer will yield to the said H. Arthur Fort, as aforesaid, peaceable possession of all that piece, parcel, or tract of land, containing five thousand three hundred and thirty-eight acres of land (well understood that fifty-five acres are to be deducted, as I, the said H. Arthur Fort, have made to the said George and J. W. Sawyer a title for the same), the said George Sawyer and John W. Sawyer are to be released from said agreement on the payment of the sum mentioned with the interest thereon; and also they are to be released from the payment of the dower and the costs that Wm. Fort and H. Arthur Fort have paid for them in the case of Ann C. Murphy vs. W. Fort, George and J. W. Sawyer, and also the taxes for the same that has been paid by W. and H. Arthur Fort since the purchase of the land by W. Fort. I, the said H. Arthur Fort, promise and agree to permit George and John W. Sawyer to stay upon the said land and cultivate all or any portion of the land that is now cleared and under fence for one year; and that said George Sawyer and John W. Sawyer be permitted to cut, saw, and raft two hundred logs off of said land, and saw all logs that they have cut and on hand ready to be sawed and raft the same to Charleston. They are also permitted to remove and raft to Charleston lumber and timber that they have on hand sawed and cut up to this date; they, the said George Sawyer and John W. Sawyer, are permitted to saw and raft all the timber John W. Scofield may cut and haul to said mill within one month from date, and to saw all the timber John W. Scofield now has at said mill. In consideration of the foregoing agreement, H. Arthur Fort, administrator as aforesaid, promises and agrees to withdraw a suit entered against George Sawyer and John W. Sawyer on an injunction, and that the suit shall proceed no further against them. In witness whereof we have set our hands and seal, January 27th, 1882. II. ARTHUR FORT, GEO. SAWYER. The trial justice reported his judgment and the reasons therefor, as follows: Mr. Meetze had the defendant, George Sawyer, sworn, and endeavored to prove by him that he (George Sawyer) claimed to hold the land at that time as tenant of minor heirs of George Sawyer, sr., deceased, who had commenced an action against Col. Fort’s heirs for the possession of this land. Mr. Graham, attorney for plaintiff, objected to this evidence or defence on the ground that the defendant was estopped from such defence because he was plaintiff’s tenant, having entered under him, and had not surrendered his tenancy, nor had he ever notified plaintiff that he held adversely to him or for third parties, and therefore he was estopped from such defence, because it was contrary to public policy; and to support this objection he cited me to the following authorities, to wit: Sedg. § Wait T. T. L., pp. 218-20, and authorities there cited; and also cited the following South Carolina decisions: Syme v. Sanders, 4 Strob., 201; Milhouse v. Patríele, 6 Rich., 352. Under the foregoing authorities I held that defendant was estopped from such defence, and accordingly ruled out his testimony. Defendant then claimed that I had no jurisdiction of the case, because the proper notice to quit had not been given to defendant by Mr. Fort. I have already stated Mr. Fort’s testimony, which was amply sufficient under the circumstances of this case, for Mr. Fort had notified him personally on more than one occasion, besides he had written him twice what he might depend on if he failed to make satisfactory arrangements about the rent, and Mr. Fort had never given him permission to remain on this land. Davis v. Gareiu and Dawson, 1 Rich., 276. Besides this, the Supreme Court, in the case of the State v. Steuart, decides that “A tenant who, after the expiration of the first year, continues to hold over without any new contract, except that implied by law, and refuses to give his note for the rent, as he had done in the first year, or to pay rent, is not entitled to the usual notice to quit. But the defendant endeavored to show that he claimed to hold the land for third parties, which conduct on his .part waived the notice if he had not been notified legally (which is not the case).” State v. Steuart, 5 Strob., 31. The defendant did not pretend to claim any title in himself to this land, and his whole conduct showed that he never intended to pay any rent to Mr. Fort. In a word, the defendant absolutely failed to show any cause why he should not be ejected from the said premises. Therefore I passed an order directing that a writ of ejectment should issue against him, requiring the sheriff or any lawful constable of Lexington County to eject him from said premises ; and on the same day I issued a warrant of ejectment against him, according to the statute in such case made and provided. The Circuit decree was as follows: In this case summary proceedings had been instituted on the part of the plaintiff to eject the defendant .as tenant of the land described in the proceedings, under section 1818 of the General Statutes. An order of ejectment was issued by the trial justice, and the defendant petitioned for and obtained a writ of certiorari issued to the Trial Justice Court, requiring that the record be brought into this court for examination on account of alleged defects in the same arising from the want of jurisdiction and power of that court to proceed under the act in question under the circumstances of this case. In order to the exercise of the power attained by the Trial Justice Court, the act invoked by plaintiff, all the circumstances must concur, required by the act, before the court would have jurisdiction. The case must clearly fall within one or more of the specified instances in which the act authorizes the Trial Justice Court to proceed in this manner. The person sought to be ejected must either be the tenant at will of the premises, or must have gone into possession of the same under a contract of service as a domestic servant or common laborer, or otherwise. The act applies only to those classes of tenants and none other. If the agreement introduced by the plaintiff is to be considered as characterizing the nature of the holding (and it is certainly the best and most reliable evidence appearing in the case), the defendant held under the terms of that paper for one year from January 27, 1882, and agreed to surrender the possession of the land at the expiration of that time. The defendant did not so surrender, but continued to hold and occupy the land during the years 1883 and 1884, and not until the present year was there any demand for possession or notice to quit; and it may well be doubted if the notice or demand here claimed to have been made was sufficient or would have been sufficient to terminate a tenancy, and to set in motion the machinery provided by the act for the ejectment of the tenant. But conceding that the proceedings would have been regular in the case of a tenant at will, can the defendant be' so regarded ? He did not enter as tenant at will, but as purchaser under a valid contract. This is stated in the written agreement; certainly up to the date of that instrument he held in his own right and not as tenant. That agreement undertakes to set aside the contract of sale, and it was agreed thereby, that if the defendant would give up possession of the land, he should be released from all liabilities for the purchase money, and should occupy the premises for one year longer. Now, if we give to this agreement the same effect as if it were a lease of the premises for one year, and an acknowledgment of tenancy for a year, which is the most favorable view for the plaintiff, when he held on for another year, held again for another year, he became a tenant from year to year, and the terms of the act would not apply to such a tenancy. If tbe agreement is not to be construed as creating a tenancy by contract for a year from its date, it must be a contract to surrender tbe possession of the land at the expiration of a year, and the incidents of a tenancy would not attach, but it would have been an agreement to be enforced by those courts having the power to enforce the performance of contracts. However, as I have said, it is most favorable to the plaintiff to construe it a contract for a tenancy for a year, which continuing, resolved itself into a tenancy from year to year, which can be terminated only in the modes applicable to such a tenancy. Any other view of the case appears to me impossible to be entertained. To eject a farmer at this season of the year, and so deprive him of the fruits of his labor, would require the strongest and clearest case of right to sustain it. If the plaintiff, before the commencement of the new year, had served the defendant with notice to quit in proper time, there would have been no wrong done in ejecting him; it would have been the defendant’s own wrong to have continued in possession and planting a crop upon the land would have been his own folly. But after having suffered defendant to continue year after year without notice to quit, the continuance in possession during the present year was a right of the defendant, of which he cannot be deprived by the method adopted in this case. It is therefore ordered and adjudged, that the proceedings of the Trial Justice’s Court herein are without jurisdiction, null, and void, and that the same and all proceedings thereunder be set aside. From this decree the respondents, Fort and Harth, appealed on the following grounds: 1. Because it appeared upon the face of the return and petition that the proceedings in this cause were had in a matter pending, within the summary jurisdiction of Wm. T. Harth, trial justice, and that having jurisdiction of the subject matter and the person of the defendant, George Sawyer, the Circuit Judge could not, by the writ of certiorari, it is submitted, 'review the judgment or proceedings in said cause. 2. Because the Circuit Judge erred in holding and deciding that the defendant, George Sawyer, was a tenant from year to year, and could not be ejected by a trial justice under section 1818 of the General Statutes. 3. Because it is respectfully submitted that the Circuit Judge committed a gross error in holding and deciding that, “To ejecta farmer at this season of the year, and so deprive him of the fruits ,of his labor, would require the strongest and clearest case of right to sustain it.” 4. Because the decision of the Circuit Judge shows that he set aside the judgment of Trial Justice Harth, simply because the defendant, George Sawyer, had planted a crop upon the premises from which the plaintiff sought to have him ejected. 5. Because the Circuit Judge erred in finding as a fact that the plaintiff, James O. Fort, had not demanded possession of the premises in question, or notified the defendant, George Sawyer, to quit until the present year, whereas the evidence offered by the plaintiff showed that the defendant had been notified verbally and in writing on more than one occasion prior to the present year, and Trial Justice Harth found as a fact that he had been so notified. 6. Because the Circuit Judge erred in holding “that the proceedings of the Trial Justice Court were without jurisdiction, null, and void.” 7. Because the Circuit Judge had no right to review the facts found by the trial justice, nor had he any right to set aside the proceedings of the trial justice in said cause.