I concur in the opinion of Mr. Justice Bonham for the following reasons:
The property in question was purchased by Lawton, the tenant, on January 6, 1928, and on that day he executed the title retaining contract covering the property. The defendant, the landlord, did not rent the premises until February 1, 1928, and the rent contract was entered upon on the 9th day of February. The property was not brought upon the premises until after February 1, 1928. The landlord had no *Page 462 lien on the property in question for rent. Fidelity Trust Mortgage Co. v. Davis, 158 S.C. 400, 155 S.E., 622.
Section 5286, 1922 Code (Section 8820, 1932 Code), deprived the landlord of the right to distrain upon the property for rent if the mortgage was placed upon the propertybefore the rent contract was entered upon, or before it wasbrought upon the rented premises, unless the landlord first paid the mortgage debt, in which event he might have distrained for the amount so paid on the mortgage debt as well as for the amount of rent due. There is nothing in that section that makes recordation necessary before thus depriving the landlord of the right to distrain. The only requirement is that the mortgage be placed upon the property. As between the landlord and tenant, it may never be recorded. If the mortgage exists, it deprives the landlord of his right to distrain. In the case at bar, the property was mortgaged before it was brought upon the premises and before the rent contract was entered upon.
The landlord here obtained no judgment against the tenant for the amount of rent alleged to be due, and consequently, no execution and levy were had.
Conceding that the landlord is a creditor within the meaning of Section 5312, 1922 Code (Section 8875, 1932 Code), and that as between him and the mortgagee (the plaintiff) he is a subsequent creditor without notice, that fact alone does not give the right to distrain upon the property for rent. Fidelity Trust, etc., Co. v. Davis, supra.
Mr. Justice Stabler in his opinion has overlooked, in his quotation from the Fidelity Trust Mortgage Co. case, an important sentence following what he did quote. It was this: "Such agreement being void, however, does not givethe landlord the right to distrain upon such property." (Italics added.)
I think the opinion of Mr. Justice Stabler is in accord with the holding of the Court in Simpson v. McDonald, 79 S.C. 277,60 S.E., 674, but that case was expressly overruled *Page 463 by the case of Fidelity Trust Mortgage Co. v. Davis,supra.
If the landlord had no lien upon the property for his rent, if he had no right to distrain thereon, if he made no levy thereon under execution against the tenant, then he had no right to the possession, and in this action of claim and delivery, the plaintiff is entitled to the possession of the property.
If the landlord had obtained judgment against the tenant and levied upon the property under execution, he probably would have been in position to raise the question of subsequent creditor without notice, but I do not think that question can be raised here. If the plaintiff attempted to remove the property from the State, the landlord might have attached the same, entered suit against Lawton, the tenant, and, after obtaining judgment, he might have levied on the property. In that way, the question of subsequent creditor without notice may have been raised.
ORDER ON PETITION FOR REHEARING