author: Scott, Judge,

text:
    Draper et al., Respondents, v. Draper et al., Appellants.
    1. To authorize the allowance, under the sixty-fifth section of the partition act (R. C. 1855, p. 1122),' of a reasonable attorney’s fee in favor of the attorney bringing a suit for partition, and the taxation and collection of the same as other costs, it must appear of record that the plaintiffs in partition had agreed to pay the attorney a certain fee — in which case the judge, if he deemed the sum agreed upon reasonable, might allow the same — or an agreement must be entered of record that the judge should fix the amount of the fee.
    2. Such a decree of allowance not warranted by the facts appearing of record may be reversed on an appeal taken to the supreme court at a term subsequent to'that at which the allowance is made.

      Appeal from Hannibal Court of Common Pleas.

    This was a suit for partition of real estate. Tlio court decreed a- partition in kind. Such partition was accordingly made, by the final decree confirming the report of the commissioners. The court also decreed that all costs in the case be taxed against the plaintiffs and defendants according to their respective interests in■ the real estate divided. The coni't, at the same time and in the same decree, allowed to the attorneys who brought the suit the sum of $1,800 as attorneys’ fees, which amount was ordered to. be taxed as other costs in the case. The whole real estate divided was valued by the commissioners at $78,425. At the next term of the court, the defendants moved the court to set aside the allowance of the attorneys’ fee, on the grounds that the court had no jurisdiction of the parties or the matter; that there was no sale of the property, and the costs were not first paid by the plaintiffs in the suit; that no notice was given to the defendants. This motion was overruled; whereupon the defendants appealed.

      Win. E. Cooke, Pratt Sf McCabei for appellants.
    I. The court had no jurisdiction of the subject matter or the parties. (Sess. Acts, 1851, p. 208.) There was no sale of the property, and the costs not having been first paid by the plaintiffs, there was nothing to authorize a proceeding against the defendants, and nothing to sustain a judgment against them. There was no notice given to defendants, and they had no day in court.

      Glover 8f Harrison, for respondents.
    I. The court properly overruled the motion of the defendants. The decree was rendered at the December term, 1858. All the parties were present consenting thereto. No complaint was made of any portion of the decree during that term. It was too late to come into court at the June term, 1859, and complain for the first time of errors committed six months before. (14 Mo. 7Í ; 25 Mo. 351.) The decree was right, and warranted by the statute. (R. C. 1855, p. 1122, § 66.)
   Scott, Judge,

delivered the opinion of the court.

This case involves the construction of the sixty-fifth section of the act concerning partition, which enacts that the judge of' the court, before whom any case of partition is bad, shall allow a reasonable attorney’s fee in favor of the attorney or attorneys bringing the suit, which shall be collected and taxed as other costs.

The writ of partition is a necessary one, and it has always had a place in our system of jurisprudence among joint owners of some hind. But there is ground for the apprehension that it has been made the means of. depriving thousands of orphans of their patrimony. The common law knew no such thing as a sale in effecting a partition: Under it real estate could not be converted into money, whatever difficulties or disadvantages attended a division of it. It was not until a power of sale was given that the process of partition became of common occurrence — that power by which the crafty, the heartless and the avaricious ar'e enabled to convert the orphan’s inheritance into money, with the real but concealed purpose of becoming the purchaser of it, and that, too, in .many instances, on their own terms. Indeed the main purpose ' of a partition in many cases is to enable a minor to convert his real estate into money, a_ measure promoted by those who see the great gain that will result to them in its being done. Restore the common law, which only allowed ’a partition in kind and absolutely denied a sale in order to make a division of real estate among joint owners, and it may well admit of a doubt if that process would be resorted to in half as many cases as It is. at this time. We do not pretend that there are any circumstances in the case before us that would warrant the foregoing remarks, but they are made with a view to show that there is no reason why the courts should indulge any liberality in construing the provisions which the law concerning, partition contains for its execution.

We can not possibly see why a plaintiff to a suit in partition can not as well contract with his attorney, as to the amount of his fee, as in any other case. A reason can not be divined why the judge, in such cases, should fix the attorney’s fee, rather than in any others. If a minor is plaintiff or defendant, he is represented by his nest friend or guardian,' who is competent to contract for him. There is, then, no necessity for the judge’s fixing the amount of the fee, as it is not to be supposed that the attorney is incapable of taking care of himself. Why should the law arbitrarily deprive a suitor of the right to make his bargain for a fee and leave it to a power that may injure and oppress him ? Why would the attorney rather prefer that the court should fix the amount of his fee, than that he should be left to contract for it ? That reason, whatever it may be, is a conclusive one why the suitor should not be deprived of the right to make his own bargain. This very case shows the danger of allowing the judge to fix the fee. As it stands before us, the sum of eighteen hundred dollars has been allowed to two attorneys for a fee; and in another suit, now here on appeal for dividing a portion of the same estate, a fee of seven hundred and fifty dollars was allowed to the same attorneys, thus making an amount of two thousand five hundred and fifty dollars for dividing one estate. We say nothing about the fees. The record does not show what services more than ordinary were rendered. It is enough for us that the cases are here for reversal on account oí the fees which the judge allowed. ■ .

In our opinion, the statute was only designed to allow an attorney’s fee to be taxed as costs, the judge seeing that it was reasonable, that it was not too great; leaving the attorney and client to contract for its amount, subject to the power of the judge to reduce it if he should be of the opinion that it was more than was reasonable. The law allowing the fee to be taxed as costs, thel-e is a propriety in this, as the guardian may not always be faithful to the interests of his ward, and as a party with a very inconsiderable share, knowing that his portion of the fee would be small, might be willing, at the expense of others, to allow an exorbitant fee to an attorney; for it is to be borne in mind that all parties to the suit, both plaintiffs and defendants, are liable for the fee in proportion to their respective shares in the estate sought to be divided. That the judge is to allow the fee, is not at all inconsistent with the idea that' it is first to be agreed upon by the parties, as the only object in allowing it is that it may be taxed with the other costs.

This being our view of the statute; we are of opinion that the authority of the judge for ascertaining the amount of the fee allowed should appear upon the face of the record. As the statute never designed that he, in the first instance, should fix the amount of the fee, it should appear that it was done by the consent of the proper parties. An agreement that the'judge should fix it, entered of record, would be a sufficient authority. In mating such an entry the judge should have reasonable assurance^that the agreement has the assent, as well of those who contracted to pay as of those who are to receive payment. If a. plaintiff having an inconsiderable share should make an extravagant bargain, of course the court would not feel itself bound by any such engagement, but, in justice to those who will pay the greater part of the fee, will reduce it to a reasonable sum. This construction of the statute we deem necessary for the protection of parties in suits for partition ; as, otherwise, attorneys might, at the heels of a term, in the absence and without the knowledge of the parties, have exorbitant and ruinous fees allowed, for which there would be no redress ; as, the term being ended, the judgment could not be altered or amended at a subsequent one.

This judgment on its face not being warranted by law, as the facts do not appear which warranted the judge in fixing the amount of the fee, according to the well-settled course of decisions of this court it may be reversed on appeal or writ of error. The error being only as to costs, it will only be reversed for so much as relates to them. (2 Saun. 101.)

The law allows the'commissioners one dollar and a half for every day they are employed, in making partition, and their charges are to be reported'to the court.

We do not know on what ground we can allow the sur-vcyor greater fees than, those prescribed by law for county surveyors.

Judge Ewing concurring,

the judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: Napton, Judge,

license: Public Domain

text:
    Wade et al., Plaintiffs in Error, v. McMillen, et al., Defendants in Error.
    1. A complaint in an action of forcible entry and detainer — which charges that the plaintiff was “ lawfully possessed” of the premises in controversy, that the defendant “ unlawfully entered and detained the same,” and was thereby guilty of a forcible entry and detainer — is good.

      Error to Hannibal Court of Common Pleas.

    This was an action for a forcible entry and detainer. The complaint is substantially as follows: “ The plaintiffs complain and say that heretofore, to-wit, on, &e., at, &c., they were lawfully possessed and entitled to the possession of” certain premises [describing them]; “ that being so lawfully possessed as aforesaid, the defendants, on, &c., at, &c., unlawfully entered upon said lands and tenements, and detained and held possession, and still detain and hold unlawfully the possession of said lands and tenements against them, the said plaintiff's, although possession of said premises had been demanded of said defendants; and therefore said plaintiffs ■ say the said defendants are guilty of forcible entry and detainer, against and contrary to the statutes in such cases made and provided.”
    At the trial, it appeared in evidence that one Cameron was the agent of the plaintiffs; that he had possession of the premises for plaintiffs from 1849 to 1854; that in April, 1854, one Barrow, who had rented the premises of Cameron, surrendered possession to him; that he, Cameron, fastened the doors and windows, and employed one French to sleep in the house until he could rent the premises; that defendant McMillen demanded possession of French, threatening him with a law suit and heavy costs; that French left and McMillen went into possession. There was evidence tending to show that French gave up the possession voluntarily to McMillen. Cameron demanded possession of the premises, but was refused. There was no evidence tending to show that he gave notice in writing. The court gave the following instruction for defendants : “ 1. Unless the jury find from the evidence that after the time of the alleged unlawful entry by said defendant, and before this suit was instituted, the plaintiff made a demand for the deliverance of the possession of said premises in writing on said defendant, and said defendant refused after such demand so made in writing to deliver possession, the jury will find for the defendants.” The court refused to permit plaintiffs to amend their, complaint by inserting therein that “ defendants entered the premises and forcibly and unlawfully detained the same.”
    The jury found a verdict for defendants.
    Henderson, for plaintiffs in error.
    I. The instz’uction was erroneous. The complaint is good. It contains every allegation that the plaintiffs were bound to prove to entitle them to a verdict for a forcible entry and detainer. (R. C. 1845, p. 515, §-16; Ish v. Chilton, 26 Mo. 256; 26 Mo. 580, 48T; 24 Mo. 107; 14 Mo. 17; 11 Mo. 854.) No notice was necessary in the case. The facts show an intrusion upon a lawful possession against the will of plaintiffs. The plaintiff’s agent was driven off by threats of a prosecution and damages. The case went to the jury upon an improper theory. Whether the facts proved constitute a forcible entry and detainer is a question of fact for the jury.

      Porter Sf Harrison, for defendants in error.
   Napton, Judge,

delivered the opinion of the court.

The complaint in this case follows the precise language of the sixteenth section of the act concerning forcible entry and detainer. It charges that the plaintiffs were lawfully possessed of the premises described, and that the defendants unlawfully entered into and detained tbe same, and were thereby guilty of a forcible entry and detainer. The sixteenth section declares that the only proof necessary to establish a forcible entry and detainer is, that the plaintiff was lawfully possessed of the premises, and that the defendant unlawfully entered and detained the same. The terms “ lawfully” and “ unlawfully” are not the most appropriate to convey the ideas intended, for the action does not contemplate any investigation into the merits of the title on either side. But as these terms are used in the statute, it would seem reasonable that their use in the complaint should not vitiate it. In truth, as the complaint in this case fully described the land and the person by whom the alleged illegal entry was made, and the time when it was done, and concluded with a charge against the defendants of forcible entry and detainer, it is not perceived how any one could be misled as to its purport. It appears to us to be substantially correct under the sixth section'of the act.

The instruction given by the court in this case is obviously based upon the hypothesis that the action was not for forcible entry and detainer, but for an unlawful detainer; and the instruction amounted to a direction that the plaintiffs could not recover on the evidence ; for there was no proof of any demand, and the whole testimony showed that the case was one of forcible entry and detainer, or that the plaintiffs had no case at all.

The real question in the case was, whether the possession was delivered up by French, plaintiff’s agent, in consequence of threats or violence on the part of defendants, or was voluntarily surrendered. This fact, concerning which the evidence might have authorized an inference either way, was not passed upon nor submitted to the jury at all, as the instruction put the case entirely upon the question of notice, a matter entirely foreign to the case, treating it as an action for forcible entry and detainer.

Judge Ewing concurring, the judgment is reversed and the cause remanded. Judge Scott absent.


text:
    Bailey, Plaintiff in Error, v. Wilson, Defendant in Error.
    1. In cases tried by the court under the practice act of 1849, there should be a finding of the facts.
    2. The following is not a sufficient finding of the facts, in an action of ejectment, within the meaning of the practice act of 1849: “ This cause being submitted to the court for trial, the court finds that said defendant is not guilty of unlawfully withholding from said plaintiff the possession of the premises in the petition mentioned in manner and form as therein stated; it is therefore considered by the court," &e.

      Error to St. Charles Circuit Cowrt.

      Broadhead, for plaintiff in error.
    I. The court should have found the facts as required by the practice act of 1849. (15 Mo. 400; 17 Mo. 550; 19 Mo. 122; 20 Mo. 132; 24 Mo. 51; 26 Mo. 166, 494; 27 Mo. 418.)

      Wells Sf E. A. Leiois, for defendant in error.
    I. The finding conforms to the petition. The only allegation in the petition in issue was “ found” by the court in the very language in which it is stated in the petition. If the 'fact is correctly stated in the petition, the same fact is correctly found by the court. The word “ facts” in the second section of the sixth article has the same signification as it has iq the second section of the fifteenth article. The court is not bound to find more facts than the plaintiff is bound to allege. If the facts stated in the p'etition, when found to be true, are sufficient to entitle the plaintiff to recover, then those same facts, being all in issue, are, when found not to be true, sufficient to entitle the defendant to a judgment. If the facts are not sufficiently stated in the petition, the judgment is for the .right party and should not be disturbed. They are not sufficiently stated. The plaintiff alleges that on a certain day he “ was entitled to the possession of the premises.” This is not simply a fact. It involves all the facts as well as the law on which his right to recover depends. No case can be found in which a judgment for the defendant has been reversed for want of a sufficient finding.
   Napton, Judge,

delivered the opinion of the court.

This case was tried by the court under the practice act of 1849, and there was no finding of facts. The entry upon the record is: “ This cause being submitted to the court for trial, the court finds that said defendant is not guilty of unlawfully withholding from said plaintiff the possession of the premises in the petition mentioned, in manner and form as therein alleged. It is therefore considered by the court,” &o.

"We understand this is a mere verdict of “ not guilty” in an action of trespass in ejectment, and no more constitutes such a finding of facts as was contemplated by the practice act than if the court had found simply for the defendant.” The statute says •: “ Upon a trial of a question of fact by the court, its decision shall be given in writing and filed with the clerk. In giving the decision, the facts shall first be stated and the conclusions of law upon them.” The object of the act was manifestly to enable parties to make a case for the revision of this court, in which the facts and law would separately appear, without requiring instructions and bills of exceptions. This purpose would be entirely defeated if the verdict of the court merely affirms or negatives the allegations of the petition or answer.

It is urged in this case that, as the verdict was for the defendant, the practice heretofore prevailing in this court, to send the case back for a finding, is inapplicable and inappropriate. But we can not see any ground for such a discrimination.

Judge Ewing concurring, judgment reversed and cause remanded. Judge Scott absent.


text:
    Wyatt, Appellant, v. Thomas, Respondent.
    1. It is not obligatory upon commissioners appointed by a county court to lay out a county road to call to their aid the county surveyor or other competent surveyor; it is sufficient if the commissioners by their report designate the location of the road with sufficient certainty.

      Appeal from Montgomery Circuit Court.

    This was an action to recover damages for a trespass in throwing down plaintiff’s fences and exposing his fields so that his crop was destroyed and his stock went astray. The defendant justified on the ground that he was a road overseer and that the fences thrown down were in the public highway. The commissioners who made the location of the road did not call to their aid a survey, and no survey was made.

      Wells, for appellant.
    I. The report of the commissioners or the survey must give a definite and ascertainable location to the road. The report and survey constitute a record. If they lack certainty, then they are void. The report is utterly indefinite and uncertain. The oral testimony introduced conflicts with the report. The court erred in refusing to give the first two instructions prayed for by the plaintiff.

      Lovelace 8f Terrill, for respondent.
    I. The- report designates with sufficient certainty the location of the road. (See 18 Mo. 357; 24 Mo. 298.) The court properly refused the instructions asked. The only question was whether the road was opened on the line designated by the commissioners.
   Napton, Judge,

delivered the opinion of the court.

In the case of Walker v. Likens, 24 Mo. 298, an owner of land was not allowed to maintain trespass against an overseer of a road, who was acting under the orders of the county court in proceeding to open a road over the land of the party complaining, although it did not appear, from the report of the commissioners who laid out the road, that the complaining owner had consented to the road going over his land, or that the proper steps had been taken to condemn the land to public uses, as in cases of the owner’s refusal. Here was a case where a constitutional safeguard had been set at naught; but the remedy was not considered to lie in an action against the officers, who were but acting in conformity to the orders of a court having jurisdiction over the subject.

The present suit is against the overseer of a road district for opening a road across plaintiff’s land under orders of the county court, and the liability of the defendant is attempted to be placed upon the vague and indefinite character of the report of the commissioners who located the road, which is supposed to invalidate it and make the order based on it no protection to the officer. But conceding its deficiencies, it is not perceived how they could have any greater efficacy in vitiating the proceedings of the officers, who undertook to execute the orders of the court, than the omissions^which occurred in the report and action of the commissioners in the case to which we have alluded.

The statute does not require the road to be surveyed. It is left to the discretion of the commissioners whether they will employ a surveyor and the necessary assistants. In a great number of cases, we know such is not the practice; and in all these cases, when there is no actual survey, the description of localities, courses and distances must necessarily be somewhat vague, and the designated route is chiefly ascertained from the stakes set or the trees blazed.

Whether the line of the road, as reported in this case, actually passed over the plaintiff’s enclosure and required the removal of his 'fence, was a question for the jury.

Judge Ewing concurring, judgment affirmed. Judge Scott absent.


text:
    Waller et al., Appellants, v. Mardus et al., Respondents.
    1. The mere right of a widow to dower before an assignment to her is not such an interest or estate as can be levied on and sold under an execution against her or a subsequent husband; the dower must first be assigned to the widow.
    2. Should the mere right of a widow to dower before assignment be levied on and sold under a judgment against a subsequent husband, the purchasers would not be creditors within the meaning of the thirty-first section of the dower act of 1845 (R. C. 1845, p. 435), or the thirty-eighth section of the dower act of 1855 (R. C. 1855, p. 676.) •

      Appeal from, Monroe Circuit Court.

    Demurrer to a petition. From tlie petition it appeared that Nathan H. Mardus died in the year 1853, seized and possessed of certain real estate, leaving a widow, Parmelia Mardus, and children. In 1855 said widow intermarried with Solomon Stickell. Certain creditors of said Stickell obtained judgments against him for debts contracted after said intermarriage, and executions were issued thereunder, and his interest in his wife’s dower interest in said real estate was levied on and sold, and the plaintiffs became the purchasers. The plaintiffs pray that the dower interest may be assigned to them, and that commissioners be appointed to assign the same. The court sustained the demurrer.

      Carr Sf Pindall, for appellants.
    I. The widow continued in possession after the death of her husband. Her second husband continued in possession until the sale by the sheriff. She was entitled to possession until the assignment of dower. The estate was a freehold for life unless sooner defeated by the petition of some one of the parties named in the thirty-first section. (R. 0. 1845, p. 435; 3 Halst. 129.) A widow may assign her dower right, and possession may be recovered by ejectment. (Stokes v. McAllister, 2 Mo. 163.) If she had become indebted during her widowhood, her creditors might have obtained judgment against her, and levied on and sold her interest. It may be subjected to the payment of the debts of her second husband contracted after marriage. (2 Harr. & Gill, 448.) Upon the marriage to Stickell, he became seized, jure uxoris, of the freehold interest vested in her, and it became subject to the payment of his debts. (27 Mo. 140 ; 20 Mo. 271; Bright on Husband and Wife, 136 ; R. C. 1855, p. 740, 753 ; 16 Mo. 129; 17 Mo. 394, 519 ; 5 Blackf. 309; 2 Pick. 316; 2 Rand. 120.) The husband’s interest in the wife’s dower may be sold previous to an assignment. The plaintiffs became substituted by their purchase to all the equity and rights of the husband’s creditors. They are brought within the meaning of the thirty-first section of the dower act. (Rankin v. Harper, 23 Mo. 579; Eddy v. Baldwin, 23 Mo. 588.) The sheriff’s sale operated as an equitable assignment of Stick-ell’s interest. Plaintiffs are substituted to the rights and equities of the husband. (4 Rawle, 468.)

      Howell, for respondents.
    I. The interest of the widow of Mardus was a mere right to have dower assigned. It was not a vested interest in specific land. It is not averred in the petition that the land was the mansion house of the former husband, or the messuages or plantation thereto belonging. She had no right of possession. There was no assignment to the widow. Besides, it is not her interest that was levied on and sold. It was that of her husband. (10 Mo, 746; 14 Mass. 378; 5 Greenl. 479; 1 Co. Litt. 584; R. C. 1855, p. 672, 676, § 21, 38.)
   Scott, Judge,

delivered the opinion of the court.

This is a suit, by purchasers under an execution at a sheriff’s sale, against a former widow and her husband, to have her dower in her first husband’s estate assigned to them. N. H. Mardus was seized of lands, and died, leaving Parmelia Mardus his widow, who was- entitled to dower in his estate, but which was never assigned to her. She, Parmelia, intermarried with the defendant Solomon Stickell, who during the marriage contracted debts for which he was sued, and, judgment having been recovered, afterwards executions issuing to Monroe county, Mrs. Stickell’s dower interest in her former husband’s estate was sold, and the plaintiffs became the purchasers. On these facts judgment was rendered against the plaintiffs.

The wife being seized of a life estate in her own right, her interest may be sold for debts contracted by her husband during the coverture for so long a tirpe as the marriage may subsist. But it is well settled that until dower is assigned the widow has no estate in the,land for which an ejectment may be maintained, or which can be sold under execution. Her interest, until dower is assigned, is a mere chose in action. Whether she could by a voluntary assignment of this chose in action enable her assignee to sue in equity to have the dower assigned is not a question involved in this case. By the statute in force at the time of the first husband’s death, and which still is the law, a creditor of the widow or of her husband may have her dower assigned. But the plaintiffs can not be regarded as creditors within the meaning of the act. The law will not suffer the widow’s dower to be assigned in a way which in many 'cases may prove detrimental to her. If the dower interest is permitted to be sold under execution before it is assigned and the purchaser shall be compelled to go to law in order to have it allotted to him, the uncertainty whether it would ever be assigned would inevitably cause a diminution of price, which would not occur if the dower was assigned before the sale took place. To sell the right of dower at public auction and then have it assigned, the purchaser taking the risk whether it will be assigned or not, would generally cause a sacrifice of it. The creditor should have the dower actually assigned before it is sold.

The plaintiffs, who were purchasers at the sheriff’s sale, can not be regarded as assignees of the interest and entitled therefore to go into equity to have the dower assigned to them. Besides the objection above stated to a sale of dower before it is assigned, the interest of the widow being such that it could not be sold under execution, it is impossible that the plaintiffs could have acquired any right under the sheriff’s deed, as it was merely void. Although the plaintiffs may have given its value for the dower interest in this case, yet, as our experience teaches us that such a mode of disposing of dower must produce sacrifices, the rule must be uniform, and it can not be made to depend upon the amount realized by the sale. The purchasers can not be regarded as creditors and be substituted in place of the plaintiffs in the execution, as the right to substitution, which is founded on equitable principles, can not be claimed when its allowance would contravene the policy of the law. There should be legislation on this subject such as would protect innocent purchasers at sheriff’s and other public sales from loss when the title to the property which they have bought fails, or there is a defect in the conveyance of the sheriff or other agent, which renders it void. In cases free from fraud and from all design to overreach, there would be justice in permitting the innocent purchaser to be substituted to the amount of his bid in the place of the execution or other creditor.

There is nothing in the record which shows that the widow was entitled to quarantine in the land, for which, under our statute, she would have been entitled to maintain an ejectment.

The judgment is affirmed;

the other judges concurring.


author: Ewing, Judge,

text:
    Liney et al., Plaintiffs in Error, v. Martin, Defendant in Error.
    1. Where different causes of action are joined in the same petition, they must each affect all the parties to the action.

      Error to Ralls Circuit Cou/rt.

    This is an action by Thomas Liney and Juliana his wife, and Sarilda J. Newcome, a minor, against William Martin. The petition is substantially as follows: Plaintiff states that James Newcome, in the year 1837, was the owner of three several tracts of land [describing them] ; that in June, 1837, he intermarried with one of- the plaintiffs, Juliana Liney, then Crockett; that afterwards, in July, 1837, he sold two of said tracts to defendant. and conveyed the same by deed of that date, in which deed said plaintiff relinquished her dower at the solicitation of her husband and the defendant; that afterwards, in August, 1837, said Newcome abandoned his wife Juliana and went to Tesas and there resided; that in 1841 she obtained a divorce from him and in April, 1842, intermarried with the plaintiff Thomas Liney; that Sarilda J. Newcome is the daughter of the plaintiff and the sole heir of the said Newcome; that he died in Texas about 1850 ; that the said Newcome, with intent to defraud the plaintiff Juliana and to deprive her of her right of dower and then abandon her forever, induced her to sign said deed and to relinquish her dower; that defendant confederated with the plaintiff and made a pretended purchase with the intent to defraud plaintiff of her dower; that no part of the pretended purchase money was paid by said Martin to said Newcome at the time or since ; that Newcome abandoned her for many years, and that after the divorce was granted, and in 1845, he returned and sold a part of the lands and offered the balance for sale.with the full assent of defendant, and claimed them as his own with the like assent of defendant. Plaintiffs aver that the land in his lifetime was held in trust by defendant for-said Newcome; that at his death it descended to the plaintiff Sarilda as his heir ; that defendant paid no consideration whatever, but held as aforesaid ; that in 1851 defendant, in fraud and violation of said trust, sold one of the tracts to one Bridgford; that this tract so sold was worth one thousand dollars; that defendant still holds one of said tracts under said conveyance. The plaintiffs pray that the said conveyance may be set aside for fraud, or that the defendant be held as trustee for the said Juliana and Sarilda in said land, .and in the sum of one thousand dollars, with interest from February 7, 1851; and that he be held to account for rents and profits of the land now in possession, and for waste, and that the land be decreed to plaintiffs according to their respective rights. The court sustained a demurrer to the petition.
    Pratt, for plaintiffs in error.
    I. The facts show that the defendant holds the lands and money in trust. On the death of Newcome they descended to the plaintiff Sarilda as his heir. This is admitted by the demurrer. The facts being admitted, it follows that the dower attaches to the property in favor of Juliana.

      Broadhead, for defendant in error.
    I. There is a misjoinder of parties and of actions. The same causes of action do not affect both parties to the action.
   Ewing, Judge,

delivered the opinion of the court.

The question in this case involves the sufficiency of the petition. It is urged that there is a misjoinder of parties and actions in the petition, and that the same causes of action do not affect both parties to the action.

From the statement of the case, it is seen that the cause of action, as it respects plaintiff Juliana Liney, was an alleged collusion between James Newcome, deceased, her former husband, and the defendant Martin, with the intent to defraud her of her dower interest in the real estate mentioned in the petition, and that it was consummated by a pretended and fraudulent conveyance of said lands to the defendant. ' As it respects the plaintiff, Sarilda J. Newcome, the minor heir of said James Newcome, the petition alleges that the same land was held by defendant in trust for said James Newcome in his lifetime, and that at his death it descended to plaintiff Sarilda J. as his heir; that in fraud and violation of the trust defendant sold one of said tracts, which is described, to one Richard Bridgford, who holds the same, and tbat defendant still bolds another of said tracts unehs the conveyance aforesaid.

In the classification of actions, under the practice act, that may be united in the petition, the plaintiff is restricted to .such as arise out of, first, the same transaction; or, second, contract, express or implied; or', third, injuries with or without force to person and property, or either; or, fowrth, injuries to character; or, fifth, claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same; or, sixth, claims to recover personal property, with or without damages for the withholding thereof; or, seventh, claims by or against a party in some representative or fiduciary capacity by virtue of a contract, or by operation of law. But the causes of action so united must all belong to one of these classes, and must affect all the parties to the action. (R. C. 1855, p. 1228.)

So far as the petition shows any cause of action in favor of the plaintiff Sarilda J. Newcome, it is obviously such a one as appropriately belongs to the seventh subdivision of the section just quoted. Upon the facts stated in the petition, no trust could arise in favor of the heir, unless the conveyance was executed bona fide to the defendant Martin as trustee, either for herself or for her father. If, as is alleged, the land was held by the' defendant as trustee for plaintiff’s father, then she can claim only such right in the land as her father had, and she would be estopped from impeaching his conveyance on the ground of fraud. As he could not allege his own fraud, nor impeach his own deed on that ground, neither can the plaintiff as his heir. The right of action of the heir being thus based upon the ground of a trust created and arising upon a conveyance, which, to authorize a recovery, must be presumed valid and untainted with fraud, it follows that it could not be joined with a cause of action arising out of a transaction alleged to be fraudulent and based distinctly upon that ground. This is manifestly the case of plaintiff Juliana Liney. It'is based solely upon the ground of a collusion between Newcome and defendant Martin, and a fraudulent conveyance of the property in controversy with the intent to defraud her of her dower. The judgment will be affirmed;

Judge Napton concurring. Judge Scott absent.