The appellant in this case asks for a rehearing. It not appearing, however, that the Court in its opinion heretofore filed, overlooked, or disregarded any material question of law or of fact, it is ordered: That the petition be dismissed and the order staying the remittitur revoked.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and CARTER, and MR. W.C. COTHRAN, ACTING ASSOCIATE JUSTICE concur.
MR. CHIEF JUSTICE BLEASE: While I did not agree with the conclusion of a majority of the Court in this case, I see no reason for a rehearing. The Court carefully considered the cause for some time after it was first heard. It is evident that a majority of the members of the Court will not change their views, and a rehearing will be entirely useless. Therefore, I favor a dismissal of the petition for rehearing. *Page 464
MR. ASSOCIATE JUSTICE BONHAM: I am constrained to dissent from the order which denies the petition for rehearing.
The rule laid down in the leading opinion, to the effect that the landlord being in possession of the property it was not necessary for him to distrain for his rent in order to have priority over the vendor of the property under a title retention contract, is in direct repudiation of the rule laid down by this Court in the cases of Fidelity, etc., Co. v. Davis,158 S.C. 400, 155 S.E., 622, and Ex parte Stackley(Lucas Brunson v. Gotham Braid Works, Inc.), 161 S.C. 278,159 S.E., 622. The doctrine announced in this main opinion seems to me to be fraught with danger. If it becomes the recognized law of this jurisdiction, under it any landlord may take possession of the property in dispute, and ipso facto, he becomes the prior lien creditor, although by the express dictum of this Court he has no lien for rent until he distrains for it. The decision is apt to promote litigation.
Nor may respondent rely upon the doctrine of subsequent creditor without notice, because under the facts of this case he would be in conflict with the opinion of the Court in the case of Carroll v. Cash Mills, 125 S.C. 332, 118 S.E., 290.
I think there should be a rehearing.