Bose v. Keel

• Decision Date: 28 July 1905
• Citation: 51 S.E. 692,72 S.C. 208
• Parties: DU BOSE. v. KEEL et al.
• Court: South Carolina Supreme Court

72 S.C. 208

51 S.E. 692

DU BOSE.

v.KEEL et al.

Supreme Court of South Carolina.

July 28, 1905.

Pleading—Separate Causes of Action.

In an action by an administratrix, the complaint alleged ownership by decedent of the described land at her death, leaving plaintiff and certain defendants heirs; the imbecility of the deceased; the control by one of the defendants over her, and his fraudulent procurement of a deed of all the property; the purchase by such defendant of the interests of certain of the heirs; his execution of a deed to certain of the other defendants who were nonresidents, purporting to convey the entire land, but in reality conveying one-third interest only; possession since the death of the original owner; the receipt of rents and profits; and the commission of waste. The relief sought was the annulling of the deed, the appointment of a receiver, partition, and an accounting. Held to state but a single cause of action, and that a motion to make the complaint more definite and certain by stating the causes of action separately was properly denied.

Appeal from Common Pleas Circuit Court of Chester County; Watts, Judge.

Action by Sarah F. Du Bose in her own right and as administratrix of Susan C. Kell against John A. Kell and others. From refusal of motion to make complaint more definite, defendants appeal. Affirmed.

The plaintiff, complaining of the defendant, alleges:

"(1) That heretofore, to wit, on or about the 24th day of December, 1902, Susan C. Kell, late of the county of Chester and state of South Carolina, departed this life, seised in fee and possessed of the following described lands and tenements, to wit: (1) All that certain tract, parcel, or plantation of land lying, being, and situate in the county and state aforesaid, known as the 'Old Kell Home Place, ' containing 1, 300 acres, more or less, and bounded as follows: * * * (2) All that certain parcel, tract, or plantation of land, situate, lying, and being in the county and state aforesaid, known as the 'Rocky Creek Place, ' and located * * *. (3) All that certain parcel, piece, or tract of land lying, being, and situate in the county and state aforesaid, known as the 'Parish Place, ' containing 100 acres, more or less, and bounded * * *; and leaving as her heirs at law the plaintiff, Sarah F. Du Bose, and the defendants Susan A. Boylston and Eunice R. Cloud.

"(2) That the said Susan C. Kell was the wife of B. E. Kell, the elder, also late of said county and state, who predeceased his wife and departed this life on the 8th day of August, 1902, leaving of force his last will and testament, which was duly admitted to probate by the probate court for Chester county, on the 20th day of September, 1902, and by which will he devised all his property, real and personal, unto his wife, the said Susan C. Kell, for life, and after her death to his nephew, Dr. B. E. Kell, also late of said county and state, and appointed bis said nephew, Dr. B. E. Kell, executor of his said will.

"(3) That at the time of the marriage of the said B. E. Kell and the said Susan, and up to the time of his death, the said B. E. Kell had no property of his own, and no business or occupation which produced any income, but lived with his said wife and upon her property, devoting bis entire time to the management and care thereof.

"(4) That at the time of her death, and for many years previous thereto, and also previous to and at the time of the death of her said husband, the said Susan C. Kell was in weak bodily health, had lost her mind, was blind and an imbecile, and was attended during this time by the said Dr. B. E. Kell, her said husband's nephew, as her physician; and during the last few years of her life she was placed by the said Dr. B. E. Kell and her said husband under the control and in the care of relatives and friends, who kept her under restraint and away from her home, under the directions of her said husband and the said Dr. B. E. Kell.

"(5) That upon information and belief plaintiff alleges that the said Susan C. Kell left her will of force, by which she devised the whole of her estate, both real and personal, to her husband, the said B. E. Kell, but that said will was never probated or put on record; and, if the same exists, plaintiff avers it is inoperative and ineffectual to pass any estate or interest in the said lands hereinabove described to the said B. E. Kell, her husband, by reason of the fact that the said B. E. Kell predeceased the said Susan C. Kell, the testatrix, and the devises and legacies therein named lapsed.

"(6) That after the death of the said B. E. Kell the said Dr. B. E. Kell, who was the nephew of the said B. E. Kell, the elder, and his executor, and had for a number of years, and ever since he was a boy, resided in the family of the said B. E. Kell, took possession of all of the property, real and personal, of the said Susan C. Kell, and managed and controlled it, ostensibly for her benefit and in her behalf.

"(7) That upon information and beliefplaintiff alleges that shortly after the death of his said uncle, and while the said Dr. B. E. Kell was in possession and control of all of the property, real and personal, of the said Susan C. Kell, and while the said Susan C. Kell was an imbecile and in weak bodily health, and confined at the house of one W. C. Brown, away from her home and where she had been placed for that purpose by the said Dr. B. E. Kell and his said uncle, the said Dr. B. E. Kell being at the time the physician of the said Susan C. Kell, and well knowing her to be incapable of attending to any business or understanding the same, fraudulently obtained from the said Susan C. Kell a deed conveying to himself all the property, real and personal, which the said Susan C. Kell owned or was entitled to, which said alleged deed has never been put on record, but is referred to by the said Dr. B. E. Kell as dated October 27, 1902; and, if the same exists, this plaintiff alleges it to have been obtained while the grantor was under duress, while she was an imbecile and incapable of legally executing the same, and that the same is without consideration, fraudulent, null, and void, and should be set aside.

"(8) That upon information and belief plaintiff alleges that after the death of the said Susan C. Kell the said Dr. B. E. Kell continued in possession of the said lands of the said Susan C. Kell, hereinbefore described, and that shortly before his death, to wit, on or about the 9th day of September, 1903, the said Dr. B. E. Kell purchased the interest of the said Susan A. Boylston and of the said Eunice R. Cloud, as heirs at law of the said Susan C. Kell in and to the said lands hereinabove described, their said interests being one-third (1/3) undivided interest therein, each taking conveyance of the said interest of Susan A. Boylston to himself, and of the interest of the said Eunice R. Cloud to his sister, the defendant C. Cloud Kell, but that none of said deeds have been put on record.

"(9) Upon information and belief plaintiff alleges that the said Dr. B. E. Kell died on October 30, 1903,...