Ensworth v. Holly

Dryden, Judge, delivered the opinion of the court. This was a suit for the specific execution of a contract for the sale of land, brought in the county of Buchanan. The petition showed that the lands sued for lay wholly in the counties of Gentry and Holt. The defendants demurred to the petition and assigned for cause that the court had no jurisdiction of the subject of the action; the demurrer was sustained and the plaintiff brings the case to this court by appeal. The demurrer was properly sustained. “ Suits concerning real estate, or whereby the same may be affected, shall be brought in the county within which such real estate or some part thereof is situate.” (§ 3, art. 4, R. C. 1855, p. 1221.) Surely this was a suit which concerned or affected real estate. Its only object was the legal title to the lands in controversy. The Buchanan court clearly had no jurisdiction, and the objection appearing on the face of the petition, was the ground of demurrer under the provisions of the 6th section of art. 6 of the practice act. (R. C. 1855, p. 1231.) The other judges concurring, the judgment of the Common Pleas is affirmed.