Simpson v. McDonald , 79 S.C. 277 ( 1908 )

March 6, 1908. The opinion of the Court was delivered by It seems that one Ethel McDonald leased certain furniture from the plaintiff, F.R. Simpson, merchant 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 the 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.L.B. Wells, Esquire, and at the trial it was made to appear that the plaintiff, F.R. Simpson, before the tenancy of the defendant, Ethel McDonald, with the estate of H. Harby, deceased, commenced, delivered to said Ethel McDonald a lot of furniture fully described in the papers marked Exhibits A, B, C, D, E and F; that such debt of the plaintiff, F.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 also appeared that the papers held by F.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, F.R. Simpson, against the defendant, Ethel McDonald.

The magistrate decreed in favor of the estate of H. Harby, deceased, holding that Mrs. Harby, as executrix, had no notice of the rights of F.R. Simpson and was entitled, as landlord, to her rent.

From this judgment of the magistrate the plaintiff appealed, and when such appeal came on to be heard by Judge R.W. Memminger it was overruled and dismissed.

The parties now appeal to this Court, and their appeal practically raises but one question, whether Mrs. Harby, as landlord, is entitled to collect her suit by distress for rent, notwithstanding Ethel McDonald 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. TroyOil Co., 74 S.C. 368, 54 S.E., 568.

Let the magistrate's judgment be reported in this case.

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