Gage v. Wayland

LyoN, J. 1. The proposition that the plaintiffs have not legal capacity to sue rests entirely upon the statement in the affidavit of the plaintiffs’ attorney verifying the complaint, to the effect that neither of the plaintiffs is capable of making the same. It is a sufficient answer to this that the affidavit of verification is no part of the pleading, and is not reached by a demurrer to the pleading. The complaint shows that the plaintiffs are sui juris. 2. While there is no express averment in the complaint that the plaintiffs are entitled to the possession of the prop [569] erty claimed, facts are stated which, if true, entitle them to such possession, and render the defendant liable to an action for failure to deliver the property to the plaintiffs on demand. It sufficiently appears that the defendant was the owner and in possession of the property, and mortgaged it to the plaintiffs to secure a debt she owed them, and gave them the right to take possession of it if they deemed themselves insecure. This was equivalent to giving them the right of possession whenever they chose to demand the property. Huebner v. Koebke, 42 Wis. 319; Cline v. Libby, 46 Wis. 123; Frisbee v. Langworthy, 11 Wis. 375. They demanded the property of the defendant, and she refused to surrender it. The cause of action against her was then complete. All this appears by apt and proper averments of fact in the complaint. Hence it states facts sufficient to constitute a cause of action. The demurrer is not well taken. By the Court.— Order reversed, and cause remanded with directions to the circuit court to overrule the demurrer.