Westlake v. Farrow

• Citation: 13 S.E. 469,34 S.C. 270
• Parties: Westlake et al. v. Farrow.
• Decision Date: 11 August 1891
• Court: United States State Supreme Court of South Carolina

13 S.E. 469

34 S.C. 270

Westlake et al.

v.Farrow.

Supreme Court of South Carolina.

Aug. 11, 1891.

Complaint—Single Cause op Action—Court of Common Pleas.

1. A complaint which alleges ownership of certain lands, and that defendant is in possession, claiming to have some interest, and wrongfully withholds the same from plaintiffs, and that they own no other land in common with defendant, contains but one cause of action, namely to recover land, though the prayer of judgment is for an accounting and partition, as the prayer is no part of the cause of action.

2. Since the court of equity in South Caro Una, as a separate tribunal, has been abolished, and its jurisdiction vested in the court of common pleas, the common pleas may take j urisdiction of an action to recover possession of land, for the purpose of partition among plaintiffs.

Appeal from common pleas circuit court of Spartanburg county; Norton, Judge.

Action by O. D. Westlake and others against Abner T. Farrow, to recover possession of laud. Demurrer to the complaint overruled. Defendant appeals. Affirmed.

Duncan & Sanders and Bomar & Simpson, for appellant.

F. M. Ansel and Arch. B. Calvert, for respondents.

McIver, J. The question presented by this appeal having arisen under a demurrer, it will be necessary to set forth, substantially, the allegations of the complaint, as follows: First, that one Thomas Rhodes died intestate, seised and possessed of the tract of land which is the subject of the action; second, that the said land descended to the four plaintiffs, nameing them, as the heirs at law of said intestate; third, that said plaintiffs are each entitled to one undivided fourth part of said premises; fourth, that defendant "is in possession of said premises, claiming to have some interest in same, and wrongfully withholds same from these plaintiffs; " fifth, that plaintiffs "own no other land in this state in common with the defendant;" sixth, that the intestate left no debts. The only judgment demanded is for an accounting and for partition. To this complaint the defendant filed a written demurrer: (1) "That several causes of action have been Improperly united, one being for partition of a tract of land between the plaintiffs, and the other being to recover the possession of said tract from the defendant. " (2) "That the court of equity has no jurisdiction to hear and determine the issues between the plaintiffs and the defendant." The case came on for hearing before his honor, Judge Norton, who overruled the demurrer, and ordered the cause to be transferred to calendar 1. From this ruling defendant appeals upon the several grounds set out in the record, which raise but two questions: (1) Whether there was an improper joinder of causes of action; (2) whether the court had jurisdiction to try the case. We infer that the case was originally docketed on calendar 2, as it involved an issue of law raised by the demurrer to be tried by the court, and when that issue was determined by the court by overruling the demurrer, upon the ground, as we suppose, that the only cause of action stated in the complaint against the defendant was that for the recovery of the possession of real estate, the case was very properly transferred to calendar 1, in order that the only issue raised between the parties, which was triable by a jury, should be tried in that way. The case does not show that the defendant was allowed to answer, but, as that is conceded in the statement submitted by counsel for respondents, we see no necessity for this court to make any provision to that effect.

Taking up the second question first, we are unable to discover any ground for the proposition that the court had no jurisdiction to try the cause. While it is quite true that as long as the court of equity was a separate tribunal, invested with jurisdiction of equity matters, it could not take jurisdiction of a cause of action purely legal in its character; and hence, as was held in Albergottie v. Chaplin, 10 Rich. Eq. 428, that court could not take jurisdiction of a case in which the demand was for the recovery of real estate from one or more of the defendants, in order that it might be partitioned among the plaintiffs and the other defendants. But since the court of equity, as a separate tribunal, has been abolished, and the jurisdiction formerly belonging to it...