Liney v. Martin

• Decision Date: 31 October 1859
• Parties: LINEY et al., Plaintiffs in Error, v. MARTIN, Defendant in Error.
• Court: Missouri Supreme Court

29 Mo. 28

LINEY et al., Plaintiffs in Error,

v.MARTIN, Defendant in Error.

Supreme Court of Missouri.

October Term, 1859.

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 Court.

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 Texas 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 ...