43 S.E. 678 | S.C. | 1903
February 27, 1903. The opinion of the Court was delivered by
This action was brought to recover the possession of real estate. The appeal is from an order by special Judge, LeRoy F. Youmans, overruling a demurrer to the complaint upon the ground that it failed to state facts sufficient to constitute a cause of action. The complaint alleged that plaintiff "has lawful title" to the described premises, and "that the defendants are in possession of the said real estate and unlawfully withholds possession of the same from the plaintiff," followed by a demand *285
for judgment for surrender of the possession and damages for unlawfully withholding the same. It is urged that the complaint states no facts, but mere conclusions of law. Undoubtedly the Code requires a statement of thefacts constituting a cause of action, but this means the ultimate facts as distinguished from mere probative or evidentiary facts, as it is not required to state those facts which merely evidence the ultimate, basic facts upon which the action depends. It is also well settled that the allegation of a mere conclusion of law raises no issue. In applying these two principles to an action to recover real estate, a difficulty is experienced in accurately defining the dividing line so as to enable one to state the basic, issuable facts without more or less involving a legal conclusion. In 21 Ency. Pl. Pr., 718, the rule is thus stated: "Allegations respecting title must not be in the shape of legal conclusions, but the facts should be expressly averred, or other facts should be alleged from which the fact of title is necessarily inferred. No certain rule can be formulated for distinguishing averments respecting titles that are regarded as merely averments of legal conclusions from those that are regarded as traversable facts * * * It seems that as a general rule an allegation that a party is the `owner' of real or personal property, or is `seized' of realty, is an allegation of an ultimate fact and not of a conclusion of law." Such allegations apparently seem to state a legal conclusion, but the authorities generally hold that they state a traversable fact. In the case of Wilmington, Columbia Augusta R.R. Co. v.Garner,
In view of the foregoing and the rule which requires a liberal construction of a pleading with a view to substantial justice, we think the complaint should not be held fatally insufficient. When it is alleged that plaintiff has title to certain premises, the meaning ordinarily attached to such statement is that plaintiff is the "owner of" the premises, or is "seized of" the same, and we do not see that the former expression involves the statement of a legal conclusion any more than the latter. Whether plaintiff has title, is the ultimate fact to be established by matters of evidence which go to show ownership or title.
If defendant desired a more definite statement as to the nature of the plaintiff's title whether in fee or for life, c., the proper remedy was a motion to make definite and certain.
Appellant's counsel cites Tutt v. R.R. Co.,
With reference to the objection that the complaint did not allege any damages and only referred thereto in the prayer for relief, we need only say that the objection cannot avail to sustain the demurrer, if, as shown, the complaint states a cause of action for the recovery of possession of the land.
All exceptions are overruled. The judgment of the Circuit Court is affirmed.