Gaw v. Allen

1. TRIAL PRACTICE: Pleading: Demurrer: Motion to Elect. When two causes of action are joined in one count the remedy is by motion requiring an election and not by demurrer. 2. DEED: Construction: Assuming Mortgage: Warranty. All within the four corners of a deed should be considered in the construction of any part thereof; and a clause assuming' a mortgage debt withdraws such mortgage from the warranty clause.

Appeal from Linn Circuit Court. — Eon. John P. Butler, Judge. (1) Plaintiff’s petition attempts to set forth a cause of action in assumpsit and in the same count seeks to reform the terms and provisions of a warranty deed not set forth in the petition. This was uniting two causes of action, one at law and one in equity, in the same count, which was error and not permitted by the rules of pleading. These several causes of action must-be separately stated, separately tried and the relief sought separately prayed for. Maguire v. Tyler, 47 Mo. 127; Marsh v. Richards, 29 Mo. 99; Doan v. Halley, 25 Mo. 357; Childs v. Bank, 17 Mo. 213; McGarey’s PL, sec. 31. (2) Exhibits filed with pleadings cannot he considered in determining the sufficiency of such pleading on a demurrer. Curry v. Lake, 35 Mo. 392; Deets v. Cor-win, 35 Mo. 376; Peake v. Bell, 65 Mo. 224; Baker v. Berry 37 Mo. 306; Vaughan v. Daniels; 98 Mo. 230; Merrill v. Trust Co., 46 Mo. App. 236; Pomeroy v. Fullerton, 113 Mo. 440. (3) The petition in this case must within itself state a good cause of action without the courts having to refer to exhibits in order to ascertain facts sufficient to sustain a cause of action and on which to render a judgment. Chambers v. Corther, 35 Mo. 374; Phillips v. Evans, 64 Mo. 11; Peake v. Bell, 65 Mo. 224; Paulson v. Collins, 18 Mo. App. 583; Vaughan v. Daniels, 98 Mo. 230; State ex rel. v. Samuel, 28 Mo. App. 649. (4) Plaintiff should have set out the warranty deed in ha-ec verba that he seeks to have reformed or else he must have set out the parts of the contract sought to be reformed changed according to its legal effect. Bliss, Code PL, sec. 158. (1) Conceding that two causes of action are set up in one count in plaintiff’s petition, defendant’s demurrer was properly overruled. A petition is not demurrable , because two causes of action are set up in one count, unless the causes of action are such as cannot be sued upon in separate counts of the same petition. In other words, if two causes of action may be sued upon in the same petition in separate counts, the fact that they are sued upon in the same count will not make the petition demurrable. Otis v. Bank, 35 Mo-. 128; Wilson v. Railroad, 67 Mo. App. 443; Mulholland v. Rapp, 50 Mo. 42; Welsh v. Stewart, 31 Mo. App. 376-384; Padley v. Smith, 23 M'o. App. 87. (2) Treating the petition as a suit in equity, the facts stated constitute one cause of action. Under these facts plaintiff was not only entitled to the specific relief prayed for, but, under the general prayer, was entitled to have the money paid out by him adjudged to be a vendor’s lien on the land deeded to defendant. Hagan v. Bank, 182 Mo. 342; Batt v. Clark, 57 Mo.-189; Banks v. Edwards, 84 Mo. App. 462; Pender v. Hazeltine, 106 Mo. App. 28. (3) The lower court treated the allegations of the petition relating to the reformation of the deed as mere surplusage, and construed the petition to be an action at law for the money paid out. This it seems was in accord with the latest ruling of this court. Fender v. Hazeltine, 106 Mo. App. 28.