106 S.W.2d 911 | Mo. | 1937
Lead Opinion
Action in equity seeking to set aside and cancel a certain trustee's deed executed under power conferred in a deed of trust securing certain indebtedness of appellants. Respondent's demurrer on the ground appellants' bill did not state facts sufficient to constitute a cause of action was sustained, and appellants, refusing to plead further, appeal from the judgment dismissing said bill.
Appellants' brief assigns error in the sustaining of respondent's demurrer. We quote appellants' points and authorities: "A suit may be maintained to set aside a fraudulent deed. Morris v. Hanssen,
[1] The mere fact that a cause of action existed in appellants to set aside a fraudulent conveyance does not establish that the allegations of appellants' bill showed appellants entitled to such relief any more so than the existence of a cause of action for damages arising out of personal injuries (or any other cause of action) establishes the sufficiency of the allegations of the written pleadings attempting to state the cause of action. The cause of action and the pleading thereof are things separate and apart when the sufficiency of the pleading is questioned by demurrer. Morris v. Hanssen, supra, was to the effect that a plaintiff, entitled under the evidence to set aside and cancel certain conveyances for fraud, was not to be deprived of such relief, although there was no allegation and proof of the insolvency of the defendant, upon the theory an action for damages at law afforded an adequate remedy. The opinion remarks: "It seems to have been conceded that plaintiff's petition stated a good cause of action in equity and does not show on its face at least that plaintiff has an adequate remedy at law. If it does so show, a demurrer should have been interposed, and that was not done." [336 Mo. l.c. 178(2), 78 S.W.2d l.c. 91(5).] A demurrer on the ground a bill does not state facts sufficient to constitute a cause of *170
action has been considered broad enough to raise such an issue [Troll v. Third National Bank,
Furthermore, after examining appellants' bill, we are of opinion the trial court correctly ruled respondent's demurrer.
Applying our Rule 16, the appeal is dismissed. Cooley andWesthues, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.