57 S.C. 151 | S.C. | 1900
The opinion of the Court was delivered by
This is an appeal from an order sustaining a demurrer to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. The action was to recover the possession of land. The complaint, in the first paragraph, alleged the execution of an indenture as follows: “State of South Carolina, County of Barnwell. This indenture made this 21st day of December, 1896, between R. M. Bostick, the lessor of the first part, and W. P. Wilcox, the lessee of the second part, witnesseth: that the party of the first part, in consideration of the covenants of the party of the second part hereinafter set forth, does by these presents lease to the said party of the second part the tract of land situated, lying and being in said State and county, and known as Tine Land’ place, ‘Field near Davant Settlement,’ ‘Moore Field,’ and ‘Tittle Moore Field,’ without any reserve, with all the buildings and appurtenances to the place, from December 21st, 1896, until the rents and revenues from said place, and all other lands leased, that are not included in the above, until the amount of five hundred and ninety-six and 37-100 ($596 37-100) dollars, and interest that may accrue on the amounts, and all further indebtedness that may accrue from time to time until the whole is paid. And the party of the second part, in consideration of the leasing the premises as above set forth, agrees to pay the party of the first part all money and produce he receives from subleasing, which shall become due and payable at the time the party of the second part receives them. The party of the first part also agrees that all of the rents and other revenues that the party of the second part may receive from the said places to the amount of five hundred and ninety-six and 37-100 ($596 37-100) dollars, and interest that may accrue on the amounts, and all further indebtedness that may accrue from time to time until the whole is paid, shall be applied to the payment of the party of the first part’s indebtedness to the party of the sec
The complaint further alleged: “2. That a large portion of the indebtedness secured, or intended to be secured, by the above written agreement remains unpaid. 3. That said Richard M. Bostick, defendant, has entered upon and taken possession of the entire premises above mentioned, to the exclusion of the plaintiff, and is collecting and appropriating the rents thereof to his own use, in violation of the said agreement and regardless of the rights of the plaintiff. Wherefore the plaintiff demands judgment for the possession of the said premises, and for such and further relief as may be just.”
The Circuit Court, holding that the complaint was defective in not alleging that the plaintiff has entered on the lands, sustained the demurrer, and gave leave to amend in' the particular mentioned. Plaintiff appeals on the two grounds, condensed in his argument as follows: “1. Because the possession of the plaintiff is substantially alleged. 2. Because such an entry is not necessary to maintain this action; a right of action to obtain possession is all that is necessary.”
The judgment of the Circuit Court is affirmed.