25 Minn. 493 | Minn. | 1879
The complaint alleges that in May, 1877, the defendants owned six certain lots in an addition to Minneapolis, and, to induce plaintiff and one Libby to purchase the same, and with intent to cheat and defraud them, falsely and fraudulently represented to them that the lots extended out to and fronted on Twenty-first avenue south, and Minnehaha avenue, and thence back to an alley through the centre of the block, and were about the ordinary size of lots in that vicinity — to wit, about fifty feet front by about one hundred and fifty-seven feet deep; and that, believing in said representations, the plaintiff and Libby purchased the lots from defendants, and paid them therefor $3,000, and defendants conveyed the lots to them; that such representations were false, and known to defendants to be so; and that, except as to a part of one of them, the lots do not extend to the avenue, but that a strip of land about forty feet wide, owned by other persons, and not conveyed by defendants’ deed, lies between the lots and the avenue; that afterwards, and before they discovered the fraud, plaintiff and Libby made partition of the lots, each taking in severalty three of them; alleges that, by reason of such matters, plaintiff has sustained damages to a specified amount, and demands Judgment therefor. The defendants demurred: first, for defect of parties plaintiff, because Libby is not joined; and, second, because the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled.
And so far as the second ground of demurrer is concerned, we think it was correctly overruled. For although it may be true that the purchasers might, by going to the office of the register of deeds and examining the plat, have ascertained the size and location of the lots, yet we do not think the defend
The first ground of demurrer is well taken. An objection is made that a demurrer for defect of parties will not lie, except it appears from the complaint that the original proper party to the cause of action not joined is still alive, so that he can be made a party, or, if dead, who succeeded to his interest or liability, as seems to have been required in a plea in abatement for want of proper parties, at common law. If this were so, it would be difficult to conceive a well-drawn complaint upon which the question of want of proper parties could be raised by demurrer. The demurrer given by the statute is not a mere substitute for the plea in abatement. The former raises a question of law upon the facts stated in the complaint. The latter presented an issue of fact, and as it was regarded as a dilatory plea, strict rules were applied ■to it, and it was required to state the facts so fully as to exclude the possibility of its having been improperly interposed. The demurrer presents the issue of law that upon the facts stated in the complaint, no other facts appearing, another party named should be joined as plaintiff or defendant. If, on those facts standing alone, some other party should be joined, the complaint ought to have alleged other facts, showing that the interest or liability of such other party had ceased.
The cause of action accrued when the defendants obtained the consideration for the purchase through the fraudulent representations, and if joint, it could not be divided by mere acts of the purchasers. That it was in them jointly hardly admits of question. It was a joint purchase, a joint contract. If, after the conveyance was made, they had failed to pay the consideration, the cause of action to recover it would have been against them jointly, and not severally. Their joint interests were prejudiced by the fraud; the wrong was -against them as joint contractors. The case is not affected
Order reversed.