The opinion of the Court was delivered by
Mr. Justice Gary.The proceedings herein were commenced before a magistrate, on the 23d of March, 1896, to eject the defendant from the premises described in the notice, which, together with the order of his Honor, Judge Witherspoon, and appellant’s exceptions to said order, will be set out in the report of the case. The defendant, in his return to said notice to show cause, alleged that he was the owner in fee of 120 acres of said land, also raised the jurisdictional questions hereinafter mentioned.
On the 10th of December, 1869, F. M. Cooper purchased from J. B. Gray 400 acres of land in Daurens County, for which he received a deed of conveyance. On this deed appears the following endorsement: “For value received, I assign to S. Bobo, or his assigns, 256 acres of the within tract of land, the balance having been conveyed to F. Patterson. I have given my bond to S. T. Prior and H. G. Prior for title to the remainder when they pay the balance of $1,447.85, arid ten per cent, interest thereon; and if the same is paid by the 25th of December, then they are to have title to the land, otherwise the land is the property of S. Bobo or his assigns.. Witness my hand and seal, March 17th, 1875. F. M. Cooper. (Test.) Mark Cooper.”
H. G. Prior executed the following instrument of writing on the 12th of December, 1883: “$770. By the 4th of November next, I promise to pay Simpson Bobo or order $770, with interest at ten percent, from 4 November last, balance for the land whereon I live,-containing 170 acres, more or less. Now, if I fail to pay the above amount when due, I am to pay rent for the next year, 1884, one-third of all that is made on the premises, and give possession on demand. Value received, December 12th, 1883. H. G. Prior, (l. S.)” There were other transactions prior to this period, but they are not material in the consideration of the case.
Simpson Bobo died in 1885, leaving a will, the third clause of which is as follows: “3. The remainder of my estate I give to my wife during her life, and at her death *188to be equally divided between my children, after making all equal, as in the second clause of this will is indicated. Some in that book have a little more than others. Pet all be made equal in the book, and divide the remainder equally. I have some land and lots unsold, which will be found in a statement among my land papers, and I have sold several lots to parties, and have their notes for the purchase money. They have my bond for titles. If the notes are paid off, my executor shall make them titles to those lands and all others embraced in the division between the legatees. I desire that there shall be no sale of property, but that it be appraised by three disinterested men and divided by lot or otherwise, as may be agreed upon. I appoint Jno. W. Car-lisle as my executor.”
The case was heard by the magistrate, who, on the 20th of May, 1896, “adjudged that the warrant of ejectment do issue, and the defendant be dispossessed of the land and premises on which the defendant lives, and the plaintiff or his agent be put in possession of the same.” • Prior appealed from said judgment. The case was heard by his Honor, Judge Witherspoon, who dismissed the appeal;
1 A preliminary question has been raised as to the defendant’s right to appeal without giving the bond mentioned in the act of 1894, page 823. The proviso to that act is as follows: “Provided, further, that either party to this proceeding shall have the right to appeal, which appeal shall stay further proceedings, upon the tenant’s entering into bond to pay the landlord all damages which he may sustain thereby.” The object of this proviso is twofold: 1st, to allow either party to the proceeding the right to appeal, and 2d, to allow the tenant the right to stay further proceeding upon entering into bond to pay the landlord all damages which he may sustain thereby. His Honor was, therefore, in error in his construction of said proviso.
Three jurisdictional questions are raised in this case: 1st. Was the magistrate without jurisdiction in the premises? *1892d. Was the title to real estate in question?, 3d. Was the notice fatally defective?
2 The first of these questions has been disposed of by the recent decision of this Court, in the case of Delk v. Zorn, ante, 152.
3 We will next consider the second question, to wit: Was the title to real estate in question? This question does not depend simply upon a construction of the writing signed by H. G. Prior on the 12th of December, 1883. The provisions of the will hereinbefore mentioned tend to show that Simpson Bobo did not intend to insist upon his right to regard H. G. Prior as a tenant. The testimony of the plaintiff also tends to show that there was a waiver of the right to insist upon the latter part of said contract. If there was a waiver, then the defendant was not a tenant, but in possession under a contract to purchase, which made him the equitable owner of the property. Fogle v. Episcopal Church, 48 S. C., 86. Under such circumstances, the title to real estate' would undoubtedly be in question, and the defendant could not be ejected in this summary proceeding.
4 The last question for consideration is, whether the notice was fatally defective. The notice was fatally defective in the following respects: 1st. It does hot show what right the plaintiff has in the land entitling him to institute this proceeding; simply being the executor of the will does not confer such right. 2d. It does not clearly appear on what grounds the proceeding was commenced against the defendant. In the case of Goodgion v. Latimer, 26 S. C., 208, Mr. Chief Justice Simpson, in be: half of the Court, said: “There are four classes of cases in which trial justices have jurisdiction in matters of ejectment by summary action. 1st. Where tenants desert the premises and fail to pay the rent. General Statutes, sections 1814-1816. 2d. Where tenants hold over after the determination of any lease — two trial justices having jurisdiction in such case. 3d. Where any persons have gone, *190or shall hereafter go, into possession of any land or tenements of another, either as tenant at will or under contract to serve another as a domestic servant or common laborer, or otherwise, and shall refuse or neglect to give up the premises so occupied, when required by the person letting the same, or upon the determination of the contract, either by its own limitations or for any other cause, the trial justice may proceed to eject, after ten days notice. Gen. Stat., sec. 1818. 4th. In all cases where tenants hold over after the expiration of their leases or contracts of rent, whether the same be in writing or by parol, or shall fail to pay the rent when it shall become due, upon the landlord entering and demanding possession, with a refusal to surrender, he may apply to a trial justice, who may eject upon three days notice. Gen. Stat., sec. 1819. Now, to give a trial justice jurisdiction, the record must show a case falling under some one of these sections.” The allegations of the notice are so confused and indefinite that it is impossible to say under which of said classes the defendant would fall.
The locus in quo is very vaguely described, but perhaps sufficiently definite to have prevented a dismissal of the proceedings, if this h'ad been the only ground urged against it. As the case is disposed of on jitrisdictional grounds, the exceptions relative to the merits of the case will not be considered.
It is the judgment of this Court, that the order of the Circuit Court be reversed.