Salvo v. Schmidt

Citations

• 29 S.C.L. 512

Syllabus

<p>1. If a distress warrant be issued by a landlord for rent due and payable by his tenant, but be not executed during the life of the latter, its authority terminates on the death of the tenant; and where the warrant thus issued was levied on the goods of the deceased, which were sold and the proceeds received by the landlord, he subjected himself to the liabilities of an executor de son tort, and was bound to distribute according to the Act of 1789.</p> <p>2. An undertaker, therefore, who had defrayed the funeral expenses of the deceased tenant, was entitled to preference over a claim for rent.</p> <p>3. The most the landlord could do, was to occupy the position of a rightful executor.</p> <p>4. The Statute of 3 Henry 8th c. 37, enabling a landlord to distrain against executors and administrators, has never been expressly adopted in South Carolina, and is not enumerated in the English Statutes made of force.</p> <p>5. But the practice under this statute could not have benefitted the defendant, as he did not, in fact, distrain against either an executor or an administrator; and even if the statute had contemplated an executor de son tort, the defendant, uniting in himself the character of both landlord and executor, was incapable of carrying on adversary proceedings.</p> <p>6. The executors and administrators mentioned in the Statute of Henry, are such as have been duly appointed.</p> <p>7. Had the effects of the deceased tenant been in the hands of an administrator, the landlord’s claim for rent in arrear, in the lifetime of the tenant, could not have been preferred to that of the plaintiffs.</p>