Spell v. Traxler, 17178
| Citation | 93 S.E.2d 601,229 S.C. 466 |
| Decision Date | 02 July 1956 |
| Docket Number | No. 17178,17178 |
| Court | United States State Supreme Court of South Carolina |
| Parties | C. A. SPELL, Respondent, v. Walker S. TRAXLER, Appellant. |
Page 601
v.
Walker S. TRAXLER, Appellant.
Page 602
[229 S.C. 467] P. Kramer, Summerville, for appellant.
J. D. Parler, N. H. Hamilton, St. George, for respondent.
LEGGE, Justice.
C. A. Spell brought this action against Walker S. Traxler to compel specific performance of his contract to purchase from Spell certain real estate. Traxler appeals from an order overruling his demurrer to the petition.
The petition, omitting the first two paragraphs, which were formal, and omitting detailed description of the real estate in question, was as follows:
'3. That heretofore on the 8th day of December, 1951, the Petitioner was the owner in fee simple of the following tract of land (describing it). The said premises are known as the 'Home Place' of the late Charles Spell, and was devised by the said Charles Spell in and by his last will and testament to his wife, Mrs. Anna Prudence Spell, and was thereafter devised by the said Mrs. Anna Prudence Spell in and by her last will and testament to the said C. A. Spell.
'4. That the Petitioner acquired title to the tract above described by the last will and testament of Anna Prudence [229 S.C. 468] Spell. Item 3 of said will reads as follows: 'In the event that Henry A. Spell should die before his father, C. A. Spell, it is my will that the executors hereinafter named handle this estate to the one in the family that is most worthy and beneficial'. That after the death of Henry A. Spell the executors of the last will and testament of Anna Prudence Spell, by their certain deed dated 17th day of July, 1948, conveyed to Petitioner the property above described in fee simple, and forever, by said deed being recorded in Book 94, page 33, R. M. C. office for Dorchester County.
'5. That heretofore the petitioner and the respondent entered into a contract for the purchase and sale of the tract of land hereinabove described wherein and whereby the respondent covenanted and agreed to pay unto the petitioner the sum of ten thousand ($10,000.00) dollars as the purchase price of said tract of land, and the petitioner covenanted and agreed to convey unto the respondent by a deed in fee simple to the lands described herein upon the payment of the sum of ten thousand ($10,000.00) dollars as aforesaid.
'6. That the Petitioner, in pursuance of said agreement tendered unto the respondent a deed in fee simple conveying the tract of land described herein, but that the respondent has failed and refused to accept the deed and pay unto the petitioner the sum agreed upon to be paid, to wit: ten thousand ($10,000.00) dollars.'
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...of the factual allegations whereof that are properly pleaded are for the purpose of such consideration deemed admitted. Spell v. Traxler, 229 S.C. 466, 93 S.E.2d 601. If a complaint states any cause of action, a demurrer should not be sustained. Fleming v. Pioneer Life Ins. Co., 178 S.C. 22......
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