Wilcox v. Scallon

Siebecker, J. The complaint is one for the speciffc performance of a contract for the sale of land by the defendant William Scallon to Thomas J. Wilcox. It is alleged that the conditions of the agreement as modified by the parties thereto have been performed on the part of the vendee, Thomas J. Wilcox, but that the vendor, William Scallon, defendant in this action, refuses to carry out his obligations and refuses to convey the premises as it is claimed he agreed to do. The complaint is demurred to on several grounds, and the trial court overruled the demurrer as to the defendant William Scallon. It is now contended that the complaint is fatally defective, [524] in that it wholly omits to state who are tbe beirs of Thomas J. Wilcox. It sufficiently appears that Thomas J. Wilcox had died before this action was commenced. The only allegations showing that he left any heirs are the statements that he was the father of the plaintiffs and that plaintiffs are his heirs, but it nowhere appears that they are all of his heirs or that they are the only parties that have an interest in the land covered by the contract set out in the complaint. Under these circumstances no final decree can be entered without affecting the interest of all persons interested in the land, •or the controversy would be left in a condition which might result in inequity to the defendant and other persons, if any there are, not parties to this action but having an interest in the land. The complaint is therefore defective in failing to specify whether or not plaintiffs are all the parties interested in the land embraced in the alleged contract of sale. This defect goes to the question of a defect of parties. The demurrer upon this ground is in the following words: “That there is a nonjoinder of necessary parties plaintiff.” Sec. 2651, Stats. (1898), provides that “the demurrer shall distinctly specify the grounds of the obj ection to the complaint, in the language of the subdivision of see. 2649 relied upon, adding, if' based upon the . . . fourth subdivision [the one here in question], a particular statement of the defect. . . . Unless it do so the demurrer may be stricken out.” In the case of Baker v. Hawkins, 29 Wis. 576, it was held that such a demurrer must show who are the proper parties so as to inform the opposite party and the court of the particular defect and to enable the party to amend. This rule is incorporated in sec. 2651, Stats. (1898). This procedure was pointed out in Murray v. McGarigle, 69 Wis. 483, 34 N. W. 522; Emerson v. Schwindt, 108 Wis. 161, 84 N. W. 186. Under the statutes and the decisions the demurrer sought to be interposed is insufficient in its terms and cannot be upheld •as contended by appellant. [525] It is claimed that tRe complaint is indefinite and'uncen* taiin. Any defect in the complaint for want of definiteness, and certainty mnst be reached by motion to make more definite and certain and is not properly raised by demurrer. It cannot be .said from the facts alleged that the plaintiffs have been sleeping on their rights and should therefore be estopped from enforcing them in this action. There is nothing in the complaint to show but that the action was commenced within a reasonable time after the parts of the contract alleged to have been modified were executed by the vendee. We find nothing in the record that would justify us in sustaining the demurrer to the complaint upon any of the grounds urged. By the Gourt. — The order appealed from is affirmed.