Tzouvelekas v. Tzouvelekas

• Citation: 206 S.c. 90,33 S.E.2d. 73
• Decision Date: 14 February 1945
• Docket Number: No. 15711.,15711.
• Parties: TZOUVELEKAS. v. TZOUVELEKAS et al.
• Court: South Carolina Supreme Court

33 S.E.2d. 73
206 S.c. 90

TZOUVELEKAS.
v.
TZOUVELEKAS et al.

No. 15711.

Supreme Court of South Carolina.

Feb. 14, 1945.

[33 S.E.2d 73]

Appeal from Common Pleas Court, of Greenville County; J. Robert Martin, Jr., Judge.

Action by James A. Tzouvelekas against Sophie Tzouvelekas and others to impress a trust in favor of plaintiff and three minor children of plaintiff and the named defendant on certain real and personal property and to foreclose a mortgage. From an order denying a motion made by the named defendant to require the plaintiff to elect between the two causes of action on ground of inconsistency, the named defendant appeals.

Affirmed.

J. G. Leatherwood and W. E. Bowen, both of Greenville, for appellant.

Love & Thornton, of Greenville, for respondent.

FISHBURNE, Justice.

The complaint in this case contains three separate causes of action, but we are concerned only with the first two stated.

In the first cause of action the plaintiff alleges that his wife, because of her conduct, should be barred from asserting any right or title to a certain house and lot on Aberdeen Drive in the City of Greenville, and to certain personal property, the legal title to which is now vested in the wife. It is prayed that this property be impressed with a trust in favor of the plaintiff and the three minor children of the appellant and the respondent.

Plaintiff alleges in the second cause of action that he is the owner of a note in the principal sum of $1,205 which is secured by a purchase money mortgage executed by the defendant, covering the same house and lot; and he asks for foreclosure of the mortgage.

The case is here on appeal from an order of the Circuit Court which denied a motion made by defendant to require the plaintiff to elect between the two causes of action, on the ground of inconsistency. The position was taken then, and now, that the first cause of action proceeds upon the the-

[33 S.E.2d 74]

ory that title to or ownership of the property is in the plaintiff; and the second cause of action proceeds upon the theory that title to or ownership of the same property is in the defendant.

Certain minor issues are presented by the appeal, but the main contention, and that which will control the decision of the xase, is that two inconsistent causes of action are united in the same complaint.

The second cause of action, which sets up the mortgage, might well be said to be the natural outgrowth of the first, in that it relates back to and arises out of the same transaction...