Gravier v. Ivory

34 Mo. 522

Opinion

Bates, Judge,

delivered the opinion of the court.

The allegations of the petition as to the suit for partition and judgment therein and sale are vague and uncertain but, upon the most favorable consideration of them, they do not show that the plaintiffs were injured by them, (and-the petition itself alleges that they were void,) and, therefore, they furnish no ground for relief. But if they be rejected as surplusage, there still remains a sufficient petition for partition upon which judgment could be given. The court, therefore, erred in sustaining the demurrer to the petition. The petition does not show, as is stated in the demurrer, that Ivory is in possession of the land. If it had so shown, the demurrer would have been properly sustained.

Judgment reversed and cause remanded.

Judges Bay and Dryden concur.