29 Mo. 28 | Mo. | 1859
delivered the opinion of the court.
The question in this case involves the sufficiency of the petition. It is urged that there is a misjoinder of parties and actions in the petition, and that the same causes of action do not affect both parties to the action.
From the statement of the case, it is seen that the cause of action, as it respects plaintiff Juliana Liney, was an alleged collusion between James Newcome, deceased, her former husband, and the defendant Martin, with the intent to defraud her of her dower interest in the real estate mentioned in the petition, and that it was consummated by a pretended and fraudulent conveyance of said lands to the defendant. ' As it respects the plaintiff, Sarilda J. Newcome, the minor heir of said James Newcome, the petition alleges that the same land was held by defendant in trust for said James Newcome in his lifetime, and that at his death it descended to plaintiff Sarilda J. as his heir; that in fraud and violation of the trust defendant sold one of said tracts, which is described, to one Richard Bridgford, who holds the same,
In the classification of actions, under the practice act, that may be united in the petition, the plaintiff is restricted to .such as arise out of, first, the same transaction; or, second, contract, express or implied; or', third, injuries with or without force to person and property, or either; or, fowrth, injuries to character; or, fifth, claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same; or, sixth, claims to recover personal property, with or without damages for the withholding thereof; or, seventh, claims by or against a party in some representative or fiduciary capacity by virtue of a contract, or by operation of law. But the causes of action so united must all belong to one of these classes, and must affect all the parties to the action. (R. C. 1855, p. 1228.)
So far as the petition shows any cause of action in favor of the plaintiff Sarilda J. Newcome, it is obviously such a one as appropriately belongs to the seventh subdivision of the section just quoted. Upon the facts stated in the petition, no trust could arise in favor of the heir, unless the conveyance was executed bona fide to the defendant Martin as trustee, either for herself or for her father. If, as is alleged, the land was held by the' defendant as trustee for plaintiff’s father, then she can claim only such right in the land as her father had, and she would be estopped from impeaching his conveyance on the ground of fraud. As he could not allege his own fraud, nor impeach his own deed on that ground, neither can the plaintiff as his heir. The right of action of the heir being thus based upon the ground of a trust created and arising upon a conveyance, which, to authorize a recovery, must be presumed valid and untainted with fraud, it follows that it could not be joined with a cause of action arising out of a transaction alleged to be fraudulent and based distinctly upon that ground. This is manifestly the case of plaintiff Juliana Liney. It'is based solely upon
