Prater v. Bennett

Lumpkin, Justice. The petition of Harriet C. Bennett against Prater and the executrix of Findley was demurred to by Prater. The demurrer was overruled, and he excepted. The substance of the petition and of the demurrer appear in the official report. 1. The facts are somewhat complicated; but we are unable to perceive how the plaintiff could obtain the full relief to which she was entitled, without a reformation of the deed which Findley, her deceased cotenant, had made to Prater. It is time she was not a party to the deed, but a direct injury resulted to her fi’om the fraud practiced upon Findley by Prater, and she could not well lid herself of the consequences of this fraud until that deed was made to speak the truth. This could not be done without having Findley’s legal representative before the court; and hence, his executrix was a proper party to the proceeding. 2. As will have been observed, the petition distinctly alleges that the plaintiff and'the deceased, Findley, had been common owners of a described tract of land, as to> a part of which Prater had obtained possession and color of [416] title by a fraud practiced upon Findley, under whom he claimed. The petition, therefore, contained enough, upon the subject of ownership, to withstand a demurrer alleging in general terms that the plaintiff had set forth “no facts t which would show title in her in or to the property sued for, or any part thereof.” The case does not fall under section 3401 of the code, which declares that the plaintiff in a statutory action for the recovery of land shall annex an abstract of the title relied upon. 3. Nor was the petition multifarious because the plaintiff sought thereby to recover damages for trespasses committed by Prater upon other lands which had been owned in common by herself and Findley, but were not embraced in the deed to Prater above mentioned. Under our system of pleading, both equitable and legal rights may be asserted in the same proceeding. The superior court having jurisdiction of the entire controversy between plaintiff and Prater, and having before it the representative of the only other person interested in the subject-matter of the dispute, it will be better for all concerned to have the various issues in controversy adjusted and disposed of by one trial. Judgment affirmed.