Player v. Player, 17913
| Decision Date | 14 May 1962 |
| Docket Number | No. 17913,17913 |
| Citation | 240 S.C. 274,125 S.E.2d 636 |
| Parties | Jack H. PLAYER, Appellant, v. C. B. PLAYER, individually and as Executor under the Will of Elizabeth M. (Hannah E.) Player, Respondent. |
| Court | South Carolina Supreme Court |
McEachin, Townsend & Zeigler, Florence, for appellant.
Lee & Moise, Sumter, for respondent.
This is an appeal by the plaintiff from an order of the lower court sustaining a demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action.
The complaint alleges, substantially, the following facts: In January, 1944, W. W. Player died leaving his will in which he, in substance, devised various parcels of land to his several children, subject to a life estate in his wife, Elizabeth M. Player. The plaintiff and defendant are among the children of Mr. Player. Subsequent to his death, his devisees entered into a family agreement under which Mrs. Player, the life tenant, released her life estate in the various parcels of land left by her husband and put her children into possession of their respective teracts upon condition that each child should separately pay to her the annual sum of $200 in lieu of her life estate. Mrs. Player also reserved to herself for life the use of the dwelling house and two acres of land around the same. This agreement was approved by order of court in a proceeding subsequently brought and under said order the annual payments required of each child were made a lien upon the land of each. Each child went into possession of his or her respective tract after the execution and confirmation of the foregoing family agreement. None of the children made any of the annual payments to their mother as required by their agreement, except the plaintiff who, it is alleged, provided practically all of her support for 12 1/2 years. She died in January, 1961, leaving a will in which the defendant C. B. Player was named as executor. A vertified claim for board and lodging for his mother for 12 1/2 years, less certain credits with which we are not now concerned, was filed by plaintiff with the defendant, as executor of their mother's estate. This claim was in due course denied by the defendant and this action was subsequently instituted by the plaintiff against the defendant, individually and as executor of Mrs. Player's estate.
The complaint, after setting forth substantially the foregoing facts, alleges that Mrs. Player, during the time in which she resided with the plaintiff, 'specifically and repeatedly stated to the plaintiff that he was to receive the payments of Two Hundred ($200.00) Dollars per year from the other remaindermen for her support, which statement constitutes an equitable assignment of the liens upon the premises devised to the remaindermen under the will of W. W. Player.' It is then alleged that plaintiff is entitled to foreclosure of his equitable lien against the premises now belonging to the defendant and to the sale of the same to satisfy the defendant's proportionate part of the claim for support of their mother, Mrs. Player.
The defendant, both individually and in his representative capacity, demurred to the complaint upon the ground that the complaint failed to set forth facts sufficient to constitute a cause of action in that (a) the facts alleged do not constitute an equitable assignment of the lien held by Mrs. Player and in the absence of such assignment no cause of action is alleged against the defendant individually, and (b) no cause of action is alleged and no relief is sought against the defendant in his representative capacity. The defendant also interposed, in the alternative, a demurrer to the complaint upon the ground that there had been improperly joined therein a cause of action against the defendant individually for the foreclosure and enforcement of an alleged equitable lien and one against the defendant in his representative capacity to enforce a claim against said estate. The lower court sustained the demurrer for insufficiency of facts to state a cause of action upon both of the foregoing grounds, thereby eliminating the necessity of passing upon the alternative demurrer for misjoinder of causes of action.
Since there has been no appeal from the ruling of the lower court that the complaint fails to state a cause of action against the defendant in his representative capacity, the sole question involved here is whether or not the lower court erred in sustaining the demurrer upon the ground that the complaint failed to state facts sufficient to constitute an equitable assignment by Mrs. Player of the lien held by her over the premises owned by the defendant. The question, argued in the brief of appellant, that the executor of the estate of Mrs. Player was a necessary or, at least, a proper party to an action to foreclose the alleged equitable lien was not raised by the demurrer and is, therefore, not properly before us for consideration.
The plaintiff concedes, and we agree, that the only cause of action attempted to be alleged in the complaint...
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