27 S.C. 318 | S.C. | 1887
The opinion of the court was delivered by
Inasmuch as the questions presented by this appeal arise under a demurrer, a brief statement of the pleadings becomes necessary. The allegations of the complaint are substantially as follows: 1st. That said Alexander May made his note under seal to said Alfred M. Lowry, dated 29th of December, 1859, and payable one day after date, for the sum of forty-eight 91-100 dollars. 2nd. That Alexander May died intestate sometime in the year 1860, seized and possessed of certain real estate, and that letters of administration upon his estate were duly committed to the defendant, Jackson. 3rd. That there was a judgment for a large sum of money against said Alexander May, remaining unpaid at the time of his death, and that, owing to the destruction of the records in March, 1865, it has long since been impossible to ascertain what amount of assets went into the hands of said Jackson, as administrator as aforesaid, although in response to repeated demands, made by said Alfred M. Lowry in his life-time, upon said Jackson for payment of said note, the said Jackson always declared that the aforesaid judgment was more than sufficient to exhaust all the personal assets of the estate of said Alexander May. 4th. That judgments for large amounts have been recovered against said Jackson individually, which are still unpaid, and his property liable to execution is wholly insufficient for the payment thereof, and that the said Jackson is believed to be wholly insolvent. 5th. That said Alexander May left surviving him, as his heirs at law, his widow Susannah, and his two children, Peter and the defendant, Mary, who has since intermarried with the defendant, David T. Redfearn. 6th. That sometime in the year 1861, the said Peter May died intestate, leaving as his sole heirs at law, his mother, Susannah, and his sister, the defendant, Mary, and that the said Susannah died intestate in 1875, leaving as her sole heir at law the defendant, Mary, and administration of her personal estate has been duly committed to the defendant, Mulloy. 7th. That the land of which the said Alexander May died seized consisted of two tracts — one in the State of North Carolina, and the other in South Carolina, Chesterfield County, of which a particular description is given, and that the South Carolina tract largely
To this complaint the defendants, Jackson, as administrator as aforesaid, and Redfearn and wife, filed a joint demurrer, upon the following grounds: 1st. Because there is a defect of parties defendant, in that Redfearn and wife are in no way liable on the note sued upon. 2nd. That “several causes of action have been improperly united, in that plaintiff brings her action to recover against the defendant, Stephen Jackson, as administrator, on a note alleged to have been executed to her intestate by the intestate of said Jackson, and in the same action seeks to recover against the defendants, Mary II. Redfearn and David T. Redfearn, the amount of the said note, on the ground that they are in possession of lands of the estate of the intestate of said Jackson — the last cause of action being one which does not arise out of the same transaction as that against the defendant, Jackson, as administrator as aforesaid, nor out of transactions connected
The Circuit Judge overruled the demurrer, with leave to the defendants to answer within twenty days upon the payment of the costs which had accrued up to that time, and the defendants appealed substantially upon the grounds set out in the demurrer, as well as upon the additional grounds, that David T. Redfearn was in no view of the case a proper party, and that the judge erred in attaching, as a condition precedent of the leave to answer, the requirement that defendants should pay the costs.
It is clear that the first ground of demurrer — for defect of parties defendant — -cannot be sustained, even if it be conceded that the two Redfearns webe not proper parties. Defect of parties, as the word imports, means too few and not too many. Hence, as is said in Pomeroy on Remedies, section 206: “A demurrer alleging this particular objection can only be interposed, therefore, in case of-a wora-joinder of necessary parties plaintiffs or defendants, and never in case of a mis-joinder. The word ‘defect’ is taken in its literal sense of ‘deficiency,’ and not in a broader sense as meaning any error in the selection of parties. Upon this point the courts are nearly unanimous.” In fact, as it appears from the note (3) to section 287, this construction is now universal, as the case in Wisconsin which held the contrary has since been overruled, and the court in that State is now in harmony with all the other States.
As to the second ground of demurrer, it seems to us to be based upon a misconception of the complaint. For it does not there appear that the plaintiff claims to have any cause of action against Jackson as administrator, nor is any judgment against him demanded. It is true that some of the facts stated in the complaint would constitute a cause of action against the administrator, but it is manifest that those facts are stated, not for the
But we do not desire to be regarded as conceding that the administrator was not a proper party. It is true that, under the former system of pleading, the administrator was not a proper party to an action at law against the heir, for the debt of the ancestor, on account of real estate descended ; but it was otherwise in a proceeding in equity, where the administrator was not only a proper, but a necessary party. Story Eq. Pl., §§ 173, 176, 180 ; Vernon v. Valk, 2 Hill Ch., 257; Goodhue v. Barnwell, Rice Ch., 239, recognized in Mobley v. Cureton, 2 S. C., 148. Now since the code has substituted a totally different system of pleading, and abolished the distinction between actions at law and proceedings in equity, whereby a defendant may plead equitable as well as legal defences to the same action, we do not see why the administrator may not be regarded at least as a proper party to an action against the heir, for the debt of the ancestor, on account of real estate descended; or why the heir, when sued alone in such an action, may not require that the administrator shall be made a party (Cleveland v. Mills, 9 S. C., 436), in order to prevent circuity of action by furnishing the heir with
The third ground of demurrer cannot be sustained. In an action against the heir for the debt of the ancestor, on account of real estate descended, there is no necessity for any “allegation of any promise, undertaking, contract, agreement, obligation, or liability, express or implied,” on the part of -the heir to pay the debt. The obligation to do so does not arise from any promise or undertaking either express or implied on the part of the heir to pay the debt, but upon the ground that he is in possession, as heir, of certain property liable for the payment of the debt. This conclusively appears from the fact that his liability only extends to the value of the property descended, even though it may be much less than the amount of the debt; whereas if his liability ai'ose from any promise or undertaking to pay the debt, it would extend to the whole amount of the debt, regardless of the value of the property which he took by descent. As to the absence of any allegation of any “obligation or liability” on the part of the Redfearns to pay the debt, it is obvious that such an allegation would be a mere legal conclusion from the facts stated, and, therefore, not only unnecessary, but improper, as-the well settled rule is that facts, and not legal conclusions, must be stated in pleadings under the code.
As to the ground taken by appellant that the demurrer should have been sustained as to David T. Redfearn because he was in no view of the case a proper party, it would be sufficient to say that the demurrer being joint, it must fail as to all, even though it might be good if interposed by one, unless it can be sustained as to all who join in the demurrer. Pomeroy on Remedies, section 291. But in addition to this, it seems from section 135 of the Code that David T. Redfearn was a proper party. That section provides: “When a married woman is a party, her husband must be joined with her, except that, when the action concerns her separate property, she may sue or be sued alone,” though neither the husband nor his property can be made liable for any recovery against her in such a suit. Now, conceding that the action here does concern the separate property of the
The only remaining inquiry is whether there was any error on the part of the Circuit Judge in requiring as a condition precedent, for the leave to answer over, the payment of the costs accrued up to that time. Section 193 of the Code provides: “After the decision of a demurrer, the court shall, unless it appear that the demurrer was interposed in bad faith, or for purposes of delay, allow the party to plead over upon such terms as may be just.” Who shall determine what terms are just, the statute does not declare; but inasmuch as that is a question of fact, it would seem to be determinable alone by the Circuit Judge, as a matter addressed to his discretion; and such has been the view heretofore taken by this court in Railroad Company v. White, 14 S. C., 52, where the point now raised was decided adversely to the view contended for by appellant, and the same principle was subsequently acted upon in the case of Cureton v. Stokes, 20 S. C., 582, and in a case between the same parties in 22 S. C., 583.
The judgment of this court is, .that the .order overruling the demurrer be affirmed, with leave to the defendants to answer within twenty days after written notice to their attorneys of this decision, upon payment of the costs, which had accrued up to the date of said order, to be taxed by the clerk of the Court of Common Pleas for Chesterfield County.