Harvey v. Hackney

Citations

• 35 S.C. 361
• 14 S.E. 822
• 1892 S.C. LEXIS 181

Syllabus

<p>1. Oral Demurrer — Waiver.—Case Criticised. — An order framing issues of fact to be tried by a jury, does not prevent the defendant from afterwards demurring orally to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. Hull v. Young, 29 S. C., 64, approved and followed.</p> <p>2. Cause of Action — Partition.—A complaint that alleges the death of intestate seized and possessed of a tract of land, which had descended to his heirs at law, all of whom, except plaintiff and one defendant, had conveyed said land to defendant P, who is now the owner thereof, and demands partition, stated facts sufficient to constitute a cause of action against P, as the grantors in the deed to P could convey no more than their undivided interests, and of these interests only had P become the owner.</p> <p>3. Demurrer — Amendment—Case Criticised. — A complaint which has been held not to state facts sufficient to constitute a cause of action, may nevertheless be amended by leave of court, whore the defect consists in a faulty statement and not in an entire absence of any cause of action. Lilly v. Railroad Company, 32 S. 0., 142, explained and distinguished.</p>