Simpson v. McDonald

60 S.E. 674, 79 S.C. 277, 1908 S.C. LEXIS 53

• Court: Supreme Court of South Carolina
• Decided: March 6, 1908
• Docket: 6792
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Chief Justice Pope.

It seems that one Ethel McDonald leased certain furniture from the plaintiff, E. R. Simpson, m|erchant in Sumter, S. C. More than forty days thereafter Ethel McDonald rented from' the estate of H. Harby, deceased, a dwelling-house, 'and she having made default in the payment of the rent in die amount of fifteen' dollars, the 'executor of the estate of H. Harby, deceased, seized said furniture under a distress -warrant for rent. Thereupon F. R. Simpson brought this, 'action of claim and delivery -as the owner of -said furniture. ¡The case came on for trial before H. D. B. Wells, Esquire, and at the trial it was made to appear that the plaintiff, F. R. Simpson, before the tenanoy of the defendant, Ethel McDonald, with the estate of IT. Harby, deceased, eommlenced, delivered to said Ethel McDonald a lot of furniture fully described in the papers mlarked Exhibits' A, B, C, D, E 'and F; that such debt of the plaintiff, E. R. Simpson, was- past due before the tenancy began; that demand was made on defendants before suit was brought and the value of the property admitted.

It ai'so appeared that the papers held by E. R. Simpson against Ethel McDonald were never recorded, and that the defendant, H. Harby, as 'executrix of the estate of H. Harby, deceased, had' no- notice of the claims of the plaintiff, E. R. Simpson, against the defendant, Ethel McDonald.

The magistrate decreed in favor oif the estate of H. H'arby, deceased, holding that Mrs. Harby, as executratrix, had no notice of the rights of F. R. Simpson and wias -entitled, as landlord, to her rent.

From this judgment of the magistrate the plaintiff appealed, and when such appeal oamie om! to be heard by Judge R. W. Memminger it wias overruled ¡and dismissed.

The parties now! 'appeal to this Court, ¡and their ¡appeal practioaily raises ¡but -one question, whether Mrs. Harby, as landlord, is entitled to 'collect her suit by distress for rent, notwithstanding Ethel McDtonaM only held the property as lessor. It is no longer a question in this State that a lease or a mortgage unrecorded 'and without notice can not be made to divest the rights of subsequent creditors. London v. Youmans, 31 S. C., 147, 9 S. E., 775; Wardlaw v. Troy Oil Co., 74 S. C., 368, 54 S. E., 568.

Let the magistrate’s judgment be reported in this dase.

It is ordered and adjudged that the appeal herein be dismissed.