37 S.E. 24 | S.C. | 1900
September 18, 1900. The opinion of the Court was delivered by The question in this case arises upon a demurrer to the complaint, and it will, therefore, be necessary to state substantially the allegations of the complaint, which are as follows: 1st. That the plaintiff was the wife of Benj. R. Bostick, deceased, who died on the 23d day of March, 1899. 2d. That said Benj. R. Bostick, during his coverture with plaintiff, was seized in fee of a certain tract of land, known as the "Chisholm place," containing 1,000 acres, more or less, and setting forth the boundaries of said tract. 3d. That during the said coverture the said tract of land was sold under proceedings to foreclose a mortgage, executed during said coverture, and upon which plaintiff had not renounced her right of dower, and that said land is now subject to her right of dower, which has become an absolute estate by the death of the plaintiff's husband. "4th. That said tract of land has within recent years been purchased by the defendant, W.D. Barnes, and the same is now in his possession, except a portion thereof, to wit: about 600 acres thereof, purchased by the defendant, J.W. Sanders, from the defendant, Barnes; that the said 600 acres being now in the possession of the said defendant, Sanders, and the defendant, Jackson Smart, to whom the said J.W. Sanders has sold a portion thereof."
To this complaint the three defendants jointly demurred upon three grounds: 1st. Because "It appears upon the face of the complaint that several causes of action have been improperly united, in that defendants hold and possess their pieces of land separate and distinct; that each defendant *25 bought his piece of land at separate and distinct times, and do not hold title in common, or as codefendants, to any of the lands named in the complaint herein. 2d. That the complaint does not designate the number of acres or location of the lands held by either of said defendants." The third ground of demurrer having been abandoned, need not be stated here.
The case was heard by his Honor, Judge Townsend, who rendered judgment sustaining the demurrer upon the two grounds above set out — especially the first — and granting plaintiff leave to amend her complaint upon the payment of the costs. From this judgment plaintiff appeals upon the several exceptions set out in the record, which will be incorporated by the reporter in his report of the case.
We propose to consider, first, the first exception, which raises the question whether the Circuit Judge was in error in holding that the complaint shows on its face that several causes of action were improperly united. It seems to us that the complaint states but a single cause of action, which the plaintiff is seeking to enforce against the three defendants. It shows that the plaintiff, by her marriage with Benj. R. Bostick, united with his seizin in fee during the coverture of a particular tract of land known as the "Chisholm place," containing 1,000 acres, more or less, and described by metes and bounds, and acquired an inchoate right of dower, which has become absolute by the death of her husband. The further facts stated in the complaint as to the sale of this tract of land under foreclosure proceedings against Benj. R. Bostick in his lifetime, and the subsequent purchase by defendant, Barnes, of said tract, together with his sale of a portion thereof to the defendant, Sanders, and his sale of a portion of his purchase to the defendant, Smart, do not in any way effect the plaintiff's single cause of action for dower in the original tract, to which she had acquired an inchoate right of dower, which afterwards became absolute by the death of her husband, certainly did not convert her cause of action into three different causes of action. At *26
most such allegations only served to indicate against whom her single causes of action might be enforced. The case of Hellams v. Switzer,
Under this view the second ground of the demurrer is clearly untenable, for the complaint does state the number of acres in, and give the boundaries of, the original tract of land, to which the inchoate right of dower had attached *29 before there was any alienation of the land. But in any view, the vice complained of by the second ground of demurrer was remediable by a motion to make the allegations of the complaint more definite and not by demurrer.
The judgment of this Court is, that the judgment of the Circuit Court sustaining the demurrer to the complaint be reversed, and the case remanded to that Court for such further proceedings as may be necessary.