Overton v. Overton

33 S.W. 1, 131 Mo. 559, 1895 Mo. LEXIS 102

Opinion

Barclay, J.

This case went off in the circuit court upon a demurrer to the petition. Those pleadings the reporter will please copy at length as an introduction to the report of the case in this court.

The only question here is whether or not the ruling sustaining the demurrer shall be affirmed.

1. The object of this action is to set aside a deed of trust to land on the alleged ground of fraud in its procurement. Such a suit involves title to real estate within the meaning of the constitution defining the jurisdiction of this court, as heretofore interpreted. Nearen v. Bakewell (1892) 110 Mo. 645 (19 S. W.Rep. 988).

2. A pleading is, no doubt, to be liberally construed in determining its effect, in accordance with the command of the code of practice. R. S. 1889, sec. 2074. But that command has not been construed, nor was it ever intended, to dispense with the necessity of stating, directly or inferentially, the facts on which the pleader depends to secure the object of his pleading, .

3. The petition is defective for the reason assigued in the second ground of demurrer, if for no other reason.

The Overton parties plaintiff are alleged to be heirs at law of the deceased, Moses Overton, whose deed is attacked; bnt it is also alleged that he left a last will, which has been duly probated. The terms of the will are not given; nor is its effect stated in respect of its disposition of the land which was the subject-matter of the deed, or of any property of the testator. Nor is it stated that the Overton plaintiffs have any interest in any real estate of his, under the will.

"Where the fact of a will appears, the law does not then infer an intestacy as to any part of the property of the deceased. Webb v. Archibald (1895) 128 Mo. 299 (28 S. W. Rep. 80).

The parties who, under the will of Mr. Overton, deceased, are entitled to claim the real property referred to in the deed sought to be canceled in this suit, are the proper parties to maintain the action, on the facts as they appear in the petition under review.

If the deceased made no disposition by will of the land in controversy, that fact should appear to entitle those relying thereon to maintain the action as representatives of the title of the deceased.

If a party who is united in interest with those who wish to bring such an action refuses his consent thereto, he may be made a defendant, in accordance with the code provision to that effect. R. S. 1889, sec. 1995.

But that provision does not relieve plaintiffs who bring a suit thereunder from showing an interest in the subject of the action necessary to its maintenance.

We think the ruling of the learned circuit judge sustaining the demurrer was correct.

The judgment is affirmed.

Brace, C. J., and Macfarlane and Robinson, JJ., concur.