28 Mo. 469 | Mo. | 1859
delivered the opinion of the court.
It is unnecessary to decide whether the demurrer was improperly sustained for the reasons assigned by the plaintiff, because, in our opinion, for other reasons, the petition stated facts sufficient to constitute a cause of action. If William C. Martin, after making the agreement with the heirs, purchased the property at the sale in partition under the cir
A petition is not demurrable because it asks a judgment not warranted by the averments; nor is its true character determined by the relief it seeks, for when there is a defence the court may grant any relief consistent with the case made and embraced within the issue. (2 R. S. 1855, p. 1280, § 12 ; Ashby v. Winston, 26 Mo. 213.)
The other judges concurring, the judgment will be reversed and the cause remanded.