Pearce v. Dunn

115 S.E. 621, 122 S.C. 441, 1923 S.C. LEXIS 11

• Court: Supreme Court of South Carolina
• Decided: January 25, 1923
• Docket: 11115
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. CtiiEE Justice Gary.

The following statement appears in the record.

“This action was commenced by the service of a notice on the defendant on-............ day of May, 1922, to show cause why he should not be ejected from the premises described in the said proceedings. The said premises were premises that had been conveyed to said J. S. Dunn to said E. C. Pearce, said E. C. Pearce having executed to said J. S. Dunn bonds and mortgages for said purchase money, said property having been conveyed as aforesaid in December 23, 1919. Said J. 'S. Dunn rented property from said E. C. Pearce after conveyance. In the year 1921 there was a written agreement as to rent between said parties. The said E. C. Pearce having defaulted upon bonds and mortgages, foreclosure proceedings were brought by J. S. Dunn against E. C. Pearce, and served on December 17, 1921. At same date, between December 17th, and the first of January, 1922, E. C. Pearce served notice upon J. S. Dunn to vacate said premises. Said J. S. Dunn declined to vacate, claiming to be a mortgagee in possession, and further contending that, foreclosure proceedings having been commenced before notice to quit was served upon him, the Circuit Court had assumed jurisdiction of all matters between said parties in respect to said lands.

“The Magistrate, upon hearing the return of the said J. S. Dunn to the rule to show cause why he should not be ejected, rendered his decision in favor of said E. C. Pearce, and issued a writ of ejectment. The defendant, J. S. Dunn, appealed to the Circuit Court from the ruling of the Magistrate. The Circuit Court confirmed'the findings of the Magistrate. At the same term of Court, in the foreclosure proceedings of J. S. Dunn against E. C. Pearce, judgment for foreclosure and sale was taken, ordering sale of said land on the first Monday in December, 1922. The defendant, J. S. Dunn, now appeals from the order of the Circuit Court herein.”

Under the head of “Findings of Magistrate,” the following appears in the record:

“This proceeding was instituted before me by E. C. Pearce, herein called plaintiff, against J. S. Dunn, herein named defendant, for-the ejection of the defendant from certain real estate owned by the plaintiff, situate in the County of Kershaw, and more fully described in the notice to show cause which is hereto attached. * * *

“I find as matters of fact as follows: That in December, 1919, the defendant conveyed to the plaintiff that tract of land hereinabove mentioned; that in the date of said conveyance the plaintiff executed and delivered to the defendant his promissory note in writing secured by mortgage upon the real estate hereinabove mentioned; that the said mortgagewas past due and owing on the 20th day of December, 1919, and the right of foreclosure existed in favor of the defendant, which right, however, he did not exercise; that on the 5th day of February, 1921, the plaintiff and defendant entered into a written agreement, the original of which is herewith filed, by the terms of which agreement the defendant, J. S. Dunn, covenanted- to rent from the plaintiff, E. C. Pearce, the land in question for the year 1921, paying therefor certain rent, and took possession of said land under said contract for rent; that the terms of said lease expired on the 31st day of December, 1921; that on the 17th day of December, 1921, the defendant, Dunn, commenced his action in the Court of Common Pleas for Kershaw County for the foreclosure of the mortgage; that, a few days subsequent to the commencement of this action for foreclosure and before the expiration of his lease the defendant received proper notice and demand for the possession of the land on January 1, 1921. The defendant refused to yield possession on the date of the expiration of his lease, asserting that he would hold over for another year • — -that is, the year 1922 — by reason and virtue of his right to do as a mortgagee in possession after maturity of the mortgage. These proceedings were instituted by the plaintiff, Pearce, the defendant filing a return thereto, which is likewise attached and made a part of the records of this case. As will be observed, in addition to claiming his right to possession under the past-due mortgage, the defendant, Dunn, contends that the Court of Common Pleas, in which foreclosure proceedings are pending, has exclusive jurisdiction, and that the Magistrate has no jurisdiction to hear and determine the right of the plaintiff to posession by reason thereof.

“I conclude as matters of law: That the Magistrate’s Court has jurisdiction to hear and determine the question of the possession of the real estate; that question not being involved in the issues pending in the Court of Common Pleas under the foreclosure proceedings. I further conclude as a matter of law that the defendant, Dunn, cannot hold possession for the year 1921 as a mortgagee in possession, there being no contract, expressed or implied, by which he entered possession under the termination of the written lease hereinabove referred to, and that his possession after the 1st day of January, 1922, is unlawful, and, therefore, he should be ejected.”

On hearing the exceptions, his Honor, the Circuit Judge, overruled them, and affirmed the order of the Magistrate. The defendant then appealed from said order.

It will be necessary to consider the exceptions in detail.

Section 171 of Code 1912 provides that—

“The Court may determine any controversy between the parties before it, when it can be done without prejud.ce to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the Court must cause them to be brought in. * * * ” ,

The action in the Magistrate’s Court was by E. C. Pearce, as plaintiff, who was already a party to the action for foreclosure of the mortgage. He was a necessary party to that action, and the question raised by him, in the proceeding before’ the Magistrate was involved in the action for foreclosure. If E. C. Pearce had not already been made a party to the action of foreclosure, it would have been necessary for him to be made a party to that action in order that there might be a complete determination of the controversy, which could not be accomplished if the controversy before the Magistrate should be allowed to proceed to a final determination. To allow both actions to be maintained would unquestionably bring about unnecessary delay.

Reversed.

Mr. Justices Watts and Eraser concur.