January 7, 1925. The opinion of the Court was delivered by This is an action of claim and delivery instituted in a Magistrate Court of Orangeburg County. The property involved consisted of a lot of fodder, cotton seed and fertilizer, which had been left on certain premises belonging to the defendant, Wolfe, at the time the premises were vacated by the plaintiff, Williams, upon the expiration of his lease.
It appears that Wolfe had rented the premises to Williams for the year 1919 at a rental of $125. Williams went into possession under the lease. About June 1, 1919, Wolfe rented back from Williams two of the rooms in the dwelling house at the agreed rental of $50, which was credited upon the rent for the entire premises, $125, leaving $75 to be paid by Williams.
At some time during the year (the exact date does not appear) Williams left the premises. He had stored the property in dispute in an outhouse on the place and left it there when he moved off; none of it had been raised on the leased premises.
In January, 1920, Wolfe endeavored to get a settlement out of Williams for the balance of the rent claimed to be due, $75, but was unsuccessful. Williams made demand upon Wolfe for the property left by him on the place. Wolfe refused to deliver it upon the ground that he was holding it for the balance due on the rent. Williams then on February 5, 1920, instituted claim and delivery proceedings for the *Page 230 property. The case for some reason was not tried until April 16, 1921, at which time the jury in the Magistrate Court returned a verdict in favor of Williams. Wolfe appealed to the Circuit Court, which, in an order by his Honor, Judge Shipp, affirmed the judgment of the Magistrate Court. From that order the defendant, Wolfe, has appealed. It should have been stated that on the day of the trial before the Magistrate the defendant, Wolfe, issued a distress warrant, and had it levied upon the property.
His Honor, the Circuit Judge, affirmed the judgment of the Magistrate upon the ground that under claim and delivery proceedings the property was in the custody of the law, and that it was too late then for the defendant, Wolfe, to issue and levy his distress warrant. He further held that a distress warrant must be levied while the relation of the landlord and tenant exists, or within ten days after it had ceased, and that for these reasons the landlord had acquired no lien upon the property.
We agree with the Circuit Judge upon the first proposition. It is unquestionably the law that property in custodia legis is not the subject of levy under distress warrant. We do not agree with him upon the second proposition.
The Circuit Judge has failed to pass upon the vital question in the case; that is, whether under Section 5283, Code of 1922, Williams was obliged to pay the balance of the rent $75 which the Circuit Court found as a fact was due before he could, under claim and delivery proceedings, remove the property from the premises.
Under that section, which the Reporter will append in his report of the case, the right of the landlord to insist upon the payment of his rent, before the property shall be removed, does not depend upon his acquisition of a lien upon the property. The question is whether, at the time of the attempted sequestration, the landlord had the right to enforce payment of his rent by distress. The attempted *Page 231 levy of the distress warrant on the day of the trial may, therefore, be entirely disregarded.
The second proposition announced by the Circuit Judge was that a distress warrant must be levied while the relation of landlord and tenant exists, or within ten days after it has ceased; with which, as stated, we do not agree. Under certain circumstances that may be true, but the present case does not present one to which that rule is applicable.
It does not appear when the rent was due, and it must, therefore, be assumed that it was at the expiration of the lease, December 31, 1919. If the principle announced by the Circuit Judge be true, as a distress warrant can only be issued for rent in arrears, and the rent was not in arrears until the expiration of the term, there never could be a warrant issued.
It does not distinctly appear when Williams personally left the premises. It is conceded that a barn on the place was filled with his produce. To that extent he was a tenant holding over after the expiration of his lease, and under Section 5287 of the Code of 1922, the landlord had six months in which to levy his distress.
We conclude that at the time the plaintiff seized the property under claim and delivery proceedings the defendant had the right to distrain for the unpaid rent, and that under Section 5283 it was incumbent upon the plaintiff to pay it before removing the property.
The following cases bear upon the subject, and more or less directly upon the questions considered: Hamilton v.Reedy, 3 McCord, 39: Margart v. Swift, 3 McCord, 378.Blake v. De Liesseline, 4 McCord, 496. Ex parte Watson, 3 Brev., 60. Harris v. Clayton, 1 McMul., 194. Ayres v.Depras, 2 Speers, 367. Fife v. Irving 1 Rich. 226. In reF.W. Connor, 12 Rich., 349. Dawson v. Dewan, 12 Rich., 499. Sullivan v. Ellison, 20 S.C. 481. Brewster v. McNab,36 S.C. 274; 15 S.E., 233. Malcomson v. Wappoo (C.C.), 85 F., 907-912. In re Bishop (D.C.), *Page 232 153 F., 304; 36 C.J., 543. Lichtenthaler v. Thompson, 13 Serg. R. (Pa.), 157; 15 Am. Dec., 581; 16 R.C.L., 1022. Owensv. Wilson, 58 Fla., 335; 50 So., 674; 138 Am. St. Rep., 117; 19 Ann. Cas., 267.
The plaintiff is entitled, upon payment of the rent due to the defendant, to recover the property in dispute.
The judgment of this Court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court, with direction to sustain the defendant's appeal and dismiss the proceedings.
MESSRS. JUSTICES WATTS, FRASER and MARION concur.
MR. CHIEF JUSTICE GARY did not participate.