THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Marvin Ott,        Appellant,

v.

Leo Ott,        Respondent.

Appeal From Orangeburg County
Rodney A. Peeples, Circuit Court Judge

Unpublished Opinion No. 2003-UP-025
Submitted October 22, 2002 � Filed January 8, 2003

AFFIRMED

Randall E. McGee, of St. Matthews, for appellant.

James B. Jackson, of Orangeburg, for respondent.

PER CURIAM:� Leo Ott (�Respondent�) brought this ejectment action in magistrate�s court to evict his stepson, Marvin Ott (�Appellant�).� In his affidavit filed in the case, Respondent claimed he owned the property and Appellant had agreed to pay $750 per month in rent, but had not done so.� The magistrate ruled in favor of Respondent, ejecting Appellant.�

Appellant appealed to the circuit court claiming the magistrate�s ruling was void for lack of jurisdiction because Appellant had a partially performed contract of sale to buy the property from Respondent�s predecessor in title.� The circuit court noted that Appellant�s proffer of the alleged contract and receipts reflecting payment under the contract were never introduced into evidence according to the magistrate�s return, and the argument made by Appellant had not been raised to the magistrate according to the return.� Apologetically, and without further elaboration, the circuit court affirmed the magistrate.� Appellant now appeals to this Court arguing the circuit court erred in finding the magistrate had subject matter jurisdiction because:� 1) Respondent and Appellant did not have a landlord/tenant relationship, and 2) Appellant made a cognizable claim of ownership of the tract of land pursuant to South Carolina Code Annotated section 22-3-20(2) (1976).

FACTUAL/PROCEDURAL BACKGROUND

In 1993, Appellant sold the subject tract of land to Lombard Corporation (�Lombard�).� On September 14, 2000, Lombard sold the tract of land to Respondent, Appellant�s stepfather.� Respondent recorded the deed.� On March 14, 2001, Respondent brought an ejectment action against Appellant in the magistrate�s court.� According to the magistrate�s return, the Respondent presented his deed and an affidavit as to the failure to pay rent.� The return states that Appellant denied Respondent�s right to eject him, but no defense of title is mentioned, and there is no identification of any evidence submitted by the Appellant supporting a defense.� The magistrate ruled in favor of Respondent.

Appellant appealed to the circuit court arguing the magistrate erred by exercising jurisdiction over the claim because:� 1) the Respondent and Appellant did not have a landlord/tenant relationship, and 2) Appellant raised a cognizable claim of ownership of the tract of land.� In support of this appeal, Appellant, for the first time, tendered a copy of the purported contract of sale between Appellant and Lombard.� Additionally, for the first time, Appellant asserted that he tried to notify Respondent of his purchase by letter, but Respondent refused to accept delivery of it.� Finally, Appellant asserted he paid $147,000 to Lombard under the alleged installment agreement.

The circuit court ruled the magistrate did not err in exercising jurisdiction.� The circuit court noted Appellant�s evidence was not in the record according to the return.� The court then entered a form order affirming the magistrate and made no further elaboration of his basis for ruling.

DISCUSSION

I.��������� Ownership of the Tract of Land�����

Appellant argues he raised a question of ownership in the tract of land; therefore, the magistrate lacked subject matter jurisdiction to hear Respondent�s ejectment claim.

Magistrate�s courts generally do not have jurisdiction over a matter if title to real property is questioned.� See S.C. Code Ann. � 22-3-20(2).

South Carolina Code Annotated section 30-7-10 (1976) states in pertinent part:

All deeds of conveyance of lands, . . . [and] all contracts for the purchase and sale of real property, . . . [are] required by law to be recorded in the office of the register of mesne conveyances . . . [and once recorded] are valid so as to effect the rights of subsequent creditors . . . or purchasers for valuable consideration without notice, only from the day and hour when they are recorded in the office of the register of mesne conveyances . . . of the county in which the real property affected is situated.�

The record reflects that Appellant claimed he and Lombard executed a contract for the sale of the tract of land from Lombard to Appellant, and that he paid $147,000.00 in installments on the contract.� Appellant, however, did not record the contract in the public records.�

Furthermore, the magistrate�s return does not reflect that this argument was made to the magistrate, or that the documentation in support of it was submitted to the magistrate.� Consequently, assuming merit to the argument, it was not preserved for review by the circuit court or by this court. Indigo Assoc. v. Ryan Inv. Co., 314 S.C. 519, 523, 431 S.E.2d 271, 273-74� (Ct. App. 1993) (�The circuit court, acting as an appellate court in a case heard by the magistrate, cannot consider questions that have not been presented to the magistrate. . . . Also, the parties to an appeal from the magistrate court are restricted to the theory on which the case was tried in the magistrate court.�) (internal citations omitted).����

As to the merits of this argument, Lombard sold the tract of land to Respondent for $130,000.00.� Respondent recorded the deed of conveyance and presented the recorded deed to the magistrate.� Respondent claims he was unaware of the contract between Lombard and Appellant.� There is no evidence in the record refuting this claim.

Therefore, as between Appellant and Respondent, Appellant has no claim to the tract of land because Respondent recorded a deed of conveyance, without notice of the alleged contract between Lombard and Appellant, and is therefore a subsequent purchaser without notice entitled to priority.� See S.C. Code Ann. � 30-7-10.

II.��������� Landlord/Tenant Relationship

Appellant argues the circuit court erred in affirming the magistrate�s ruling that Appellant and Respondent had a landlord/tenant relationship; thus, Appellant claims the magistrate was without subject matter jurisdiction to hear the claim.

Magistrate�s courts have jurisdiction �in all matters between landlord and tenant and the possession of land as provided in [the Landlord Tenant Act].�� S.C. Code Ann. � 22-3-10(10) (Supp. 2001).�

When reviewing a magistrate�s decision, the circuit court, acting in its appellate capacity, can find facts in accordance with its own preponderance of the evidence.� Vacation Time of Hilton Head Island, Inc. v. Kiwi Corp., 280 S.C. 232, 234, 312 S.E.2d 20, 21 (Ct. App. 1984).

This Court, when reviewing the decision of the circuit court sitting in its appellate capacity, must affirm the findings of fact of the circuit court if there is any evidence to support them.� Wright v. Ritz Theatre, 211 S.C. 161, 164, 44 S.E.2d 308, 309 (1947); Vacation Time of Hilton Head Island, Inc., 280 S.C. at 233, 312 S.E.2d at 21.� Additionally, this Court will presume the circuit court affirmed the magistrate's judgment on the merits where the testimony is sufficient to sustain the judgment of the magistrate and the circuit court�s decision was not influenced by an error of law.� Bagnal v. Southern Express Co., 106 S.C. 395, 400, 91 S.E. 334, 335-36 (1917); Burns v. Wannamaker, 281 S.C. 352, 357, 315 S.E.2d 179, 182 (Ct. App. 1984).

South Carolina Code Annotated section 27-33-10(3) defines a tenant-at-will as any person �using or occupying real estate without an agreement, either oral or in writing . . . .�� Further, �[w]hen a person enters upon or uses the premises of another without agreement or without permission of the owner or by trespass the owner may at his option waive such tort and treat and deem such person as a tenant at will.�� S.C. Code Ann. � 27-35-40 (1976)

The magistrate noted that Respondent had a deed to the property, and Appellant did not present any evidence of ownership entitling him to possession.� The magistrate also referred to the Respondent in the return as landlord.� As the circuit court noted, the Appellant did not submit his alleged contract or receipts to the magistrate, nor did he make the argument of title according to the return.� The Appellant did not dispute this observation at the circuit court hearing.� Additionally, there is no evidence in the record demonstrating that Respondent sought a cause of action against Appellant for trespass.� Therefore, there is evidence to support the magistrate�s treatment of Appellant as a tenant at will.� See S.C. Code Ann. � 27-25-10.

Respondent claims he chose to treat Appellant as a tenant at will.�� It is indisputable that Appellant failed to pay rent.� Although the circuit court did not make specific findings of fact, given the evidence in the magistrate�s record, and the applicable statute, we conclude there was sufficient evidence for the circuit court to affirm the magistrate�s ruling.� Furthermore, Appellant has not claimed, nor does the record demonstrate, that the circuit court made an error of law.� Therefore, this Court, pursuant to its standard of review, must affirm the circuit court�s ruling.� See Vacation Time of Hilton Head Island, Inc., 280 S.C. at 233, 312 S.E.2d at 21 (holding this Court, when reviewing the decision of the circuit court sitting in its appellate capacity, must affirm the findings of fact of the circuit court if there is any evidence to support the findings); Burns, 281 S.C. at 357, 315 S.E.2d at 182 (holding this Court will presume the circuit court affirmed the magistrate�s judgment on the merits where the testimony is sufficient to sustain the judgment of the magistrate and the circuit court�s decision was not influenced by an error of law).

CONCLUSION

Based on the foregoing, the ruling of the circuit court is hereby

AFFIRMED.

CONNOR, STILWELL, and HOWARD, J.J., concur.