68 Mo. 198 | Mo. | 1878
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
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 in fact it conveyed to her an absolute estate subject to the marital rights of her husband. This objection, we think, was properly over-' ruled, as the real question involved was whether the land held by her under the deed (without regard to the estate conveyed, whether separate or absolute), was subject, under the facts in the case, to a vendor’s lien. The answer admits that the note was given in consideration of the land. When defendant accepted the conveyance she knew that the portion of the purchase money represented by the note was unpaid, for she admits in her answer that the note was given in consideration of the land, but denies that there was a vendor’s lien retained. Although the pleader may have mistaken the legal effect of the deed in alleging that it conveyed a separate estate, when in fact it conveyed an absolute estate, still the right of the vendor to subject the land to the paymenut of the purchase money remained, unless it had been waived or abandoned.'
And what will, or will not, constitute a waiver is thus
Affirmed.