Davenport v. Murray

• Decision Date: 31 October 1878
• Citation: Davenport v. Murray, 68 Mo. 198 (Mo. 1878)
• Parties: DAVENPORT v. MURRAY et al., Appellants.
• Court: Missouri Supreme Court

68 Mo. 198

DAVENPORT

v.MURRAY et al., Appellants.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Lafayette Circuit Court.--HON. WM. T. WOOD, Judge.

Alex. Graves for appellants.

Rathbun & Shewalter for respondent.

NORTON, J.

This suit was instituted in the circuit court of Lafayette county to enforce a vendor's lien. On a trial of the cause plaintiff obtained judgment, from which defendants, after motions in arrest and for new trial had been overruled, have appealed to this court. The errors assigned are that the court erred in overruling defendants' motion to require plaintiff to elect on which cause of action she would proceed; in overruling demurrer to the petition; in sustaining plaintiff's motion to strike out part of answer, and in admitting illegal evidence.

The petition alleges that plaintiff was the owner of certain land therein described, that she sold the same to defendants, (they being husband and wife,) and, at their request, made the deed to the wife, vesting in her a separate estate; that, for the unpaid purchase money the note described in the petition was given and signed by both defendants. Plaintiff asks judgment against defendant T. B. Murray, a special judgment against the separate property of defendant Lucretia Murray, and for sale of the land in question to discharge the vendor's lien. It is claimed by defendants that the petition contains two causes of action in the same count, and that, for that reason, the motion to require plaintiff to elect on which cause she would proceed ought to have been sustained. As we construe the petition, it substantially sets forth but one cause of action, that being simply to subject the land conveyed to the payment of the unpaid purchase price. It is true that a judgment is prayed for against Thomas B. Murray, as well as a special judgment against the separate property of Lucretia, and that the real estate be sold to satisfy the lien of the vendor, but the character of the petition is not to be determined from its prayer, but from the allegations it contains. Applying this test it would seem that all the pleader intended to accomplish was to obtain judgment against defendant T. B. Murray, for the unpaid purchase money and subject the land to sale for its payment. Henderson v. Dickey, 50 Mo. 161; Ames v. Gilmore, 59 Mo. 537. What is here said in regard to this motion applies also to the demurrer to the petition on the ground of multifariousness in stating two causes of action in the same count. We perceive no error in the action of the court in overruling both the motion and demurrer.

Plaintiff offered in evidence the deed from her to Mrs. Murray. This was objected to on the ground of variance in this, that the petition alleged that the deed vested in Mrs. Murray a separate estate, when...