32 S.C. 195 | S.C. | 1890
Lead Opinion
The opinion of the court was delivered by
Inasmuch as the questions presented by this appeal arise upon a demurrer based upon the ground that the complaint does not state facts sufficient to constitute a cause of action, it will be necessary to make a condensed statement of the allegations of the complaint, which are substantially as follows: that on or about the 17th of August, 1853, the plaintiffs made an agreement for an exchange of lands with Woodward Allen and his wife, the defendant, Harriet Allen, whereby the plaintiff was to convey to them a certain tract of land containing 82 acres, and pay them a specified sum of money, in consideration whereof the said Woodward Allen and wife were to convey to plaintiffs, by good and sufficient titles, two tracts of land, one containing about 87 acres and the other 42 acres, the said two tracts being the estate of inheritance of said Harriet Allen, and her husband having no estate therein except by reason of his marital rights ; that in pursuance of said agreement plaintiff conveyed to the said Woodward Allen and wife Harriet, by deed containing full covenants of warranty, the 82 acre tract, and paid to them the sum of money specified; that this was done in full
Upon these allegations judgment is demanded: 1st. That the defendants be enjoined from selling the 82 acre tract of land. 2nd. That said Harriet Allen be required .to elect whether she will take as her land the two tracts of 37 and 42 acres respectively, now occupied by plaintiff, or the 82 acre tract conveyed to her and her husband. 3rd. That in case the said Harriet Allen shall fail to confirm the title of plaintiff to the two tracts now occupied by her, then that the title to the 82 acre tract be adjudged to be still in the plaintiff
To this complaint none of the defendants, except R. C. Oliver, answered in the first instance, and upon the coming in of his answer, the case was referred to the master to hear and determine the issues therein. At the hearing before the master, the executors of Woodward Allen, together with some of the devisees, including his widow, Harriet Allen, put in their answers, signed by one of the attorneys for the plaintiff, admitting all the allegations of the complaint, and joining in the prayer thereof. These answers, on the morning of the hearing before the master, were served upon the attorneys for plaintiff, but not upon the defendant Oliver, and the master allowed these answers to come in, the plaintiff assenting thereto. At the hearing the defendant Oliver did not read his answer, but demurred orally to the complaint, as well as to the answers of the executors and devisees, on the ground that the facts stated therein were not sufficient to constitute a cause of action. The master sustained the demurrer as to the complaint, but proceeded to take the testimony set out in the “Case.”
The master, in his report, after stating that he sustained Oliver’s demurrer and dismissed the complaint as to him, and finding that the allegations of the complaint were true, and that plaintiff was entitled “to the relief demanded in the complaint as against all the defendants who have made default, or who have
Upon this report and exceptions the case was heard by his honor, Judge Fraser, who rendered his decree, holding that the facts stated in the complaint are not sufficient to constitute a cause of action against any one, and he therefore rendered judgment dismissing the complaint. From this judgment plaintiff appeals upon the several grounds set out in the record, which we do not deem it necessary to repeat here, for the only question really presented is, whether there was error in holding that the facts stated in the complaint are not sufficient to constitute a cause of action against any one.
We concur in the view taken by the Circuit Judge. Stripped of all superfluous matter, the plaintiff’s claim at best amounts simply to this: that many years ago she made an absolute conveyance, with full covenants of warranty, to the Allens for the 82 acre tract, in consideration that she was to receive from them good and sufficient titles for the 37 and 42 acre tracts respectively ; that although she has enjoyed full and uninterrupted possession of these two tracts for upwards of thirty years, she has here lately become apprehensive that her title thereto is not good, and that she may be evicted under an action which has been brought and is now pending against her, and she therefore claims a rescission of this executed contract for the exchange of said lands. It is quite clear, under the cases of Whitworth v. Stuckey (1 Rich. Eq., 404), recognized and followed in the recent case of Ohilds
It may be that the facts stated in the complaint, if sustained by proof, will furnish a good defence to the action brought by Harriet Allen against the plaintiff to recover the two tracts of land. It may be that a Court of Equity would not permit Harriet Allen to recover from the plaintiff the land intended to be assured to her by good and sufficient titles, after she has voluntarily placed it beyond her power to restore to the plaintiff the land she received on the exchange, by acquiescing in the decree made in a cause to which she was a party, adjudging said land to be the property of her husband, and directing it to be sold for payment of his debts, one of which was secured by a mortgage on this very land, which possibly was given with her knowledge and approval, for it is stated in-the case of Jefferies v. Allen (29 S. C., 501), that she renounced her dower on the mortgage to Oliver. All this may possibly be so, but that is not the question now before, us, and therefore we express no opinion as to these matters.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.
Dissenting Opinion
dissenting. I cannot concur. It may be that the statements of the complaint were not as full as they might have been. But it seems to me, if the 82 acres conveyed by Mrs. Moss were now beyond the reach of rescission, • that the court should not permit Mrs. Allen, or any one under