Kennedy v. Campbell

5 S.C.L. 553

• Court: Supreme Court of South Carolina
• Decided: April 15, 1816
• Status: Published

Opinion

Nott, J.

The only question in this case is, whether in an action of trespass to try title, a landlord may be substituted defendant in the place of his tenant; or be made a co-defendant with him, so as to defend the title to his own land : or whether he must lie by until his tenant is turned out of possession, and the plaintiff put in ; and then in turn bring his action, and turn him out again. I have no doubt but he may be permitted to come in and defend his title. Our act of assembly, substituting the action of trespass for the old action of ejectment, merely adopts a new mode of proceeding; but does not alter any of the principles of law relating to the subject. It would be productive of the most mischievous consequences, if a contrary construction should be given to the act. I am of opinion, therefore, that the cause should be sent back, and if the person claiming to be landlord, can shew, that under the former mode of proceeding in an action of ejectment, he could be entitled to come in and defend that title, he should be allowed that privilege now.

Gkimke, Smith and Bay, Js., concurred.