Dubose v. Kell , 72 S.C. 208 ( 1905 )

July 28, 1905. The opinion of the Court was delivered by The defendants made a motion to require the complaint to be made more definite and certain "by setting out each cause of action contained in said complaint separately, duly and distinctly denoted and numbered as such, and each containing a plain and concise statement of the facts constituting such cause of action, without redundancy or unnecessary repetition." The appeal is from an order refusing the motion on the ground that only one cause of action was stated in the complaint. There is no room for doubt as to the correctness of the view of the Circuit Judge. In brief, the complaint alleges: Mrs. Kell's ownership of the land described, her death leaving as her heirs the plaintiff, the defendants Mrs. Boylston and Miss Cloud, the imbecility of Mrs. Kell, the control of Dr. B.E. Kell over her and his fraudulent procurement of a deed from her conveying to him all her property; the purchase after Mrs. Kell's death of the interests of Mrs. Boylston and Miss Cloud by Dr. Kell; the execution by Dr. Kell of a deed, in consideration of love and affection, to certain of the defendants, his brothers and sisters, who are non-residents, purporting to convey the entire land, but in reality only conveying the one-third interest acquired by him from Mrs. Boylston and Miss Cloud; the possession by the defendants of the land since the death of Dr. Kell, the receipt of the rents and profits, and the commission of waste by them. The relief sought is the annulling of the deed from Mrs. Kell to Dr. B.E. Kell, the appointment of a receiver, partition, and account for rents and profits and waste.

The facts alleged, if proved, will establish but one primary right of the plaintiff, namely: ownership of an interest in the land as tenants in common with the defendants; they will establish but one primary wrong of the defendants, namely: the withholding of the plaintiff's interest in the land from her by means of an alleged fraudulent deed. The right of the plaintiff to have her primary right of ownership of an interest in the land cleared from the obstruction of a fraudulent deed, the right to partition, the right to rents and profits, and to compensation for waste, are all subordinate rights included in the primary right of ownership. The primary wrong of the defendants is the obstruction of the plaintiff's right to enjoy the ownership of her interest in the land; and the fraudulent deed, the withholding of her share of the rents and profits, and the waste committed by them, are only methods employed in accomplishing the primary wrong, and are included in it. Pomeroy's Code Remedies, sec. 455; Threatt v. BrewerMining Co., 49 S.C. 95, 26 S.E., 970; Smith v. Smith, 50 S.C. 65,27 S.E., 545.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.