Gaw v. Allen , 112 Mo. App. 711 ( 1905 )

ELLISON, J.

Plaintiff brought this action to recover a sum of money due on a note secured by mortgage given by plaintiff which he charged the defendant agreed to pay by assuming it in a deed made to him by plaintiff, but. failed, whereby plaintiff was compelled to pay it. The petition likewise alleged that by mistake the provision in regard to defendant assuming the mortgage was not excepted from the warranty in the deed and asked that it be reformed. The defendant demurred to the petition on the ground that it did not state a cause of action; and that two separate and distinct causes of action had been united; and that he sought to reform the provisions of a deed and did not file it with the petition, nor set forth the part to be reformed. The demurrer was overruled and defendant appealed.

The demurrer was properly overruled. When-two causes of action are joined in one count which might have been joined in one petition in separate counts, the remedy is by motion to require the plaintiff to elect upon which he will proceed. [Otis v. Mechanics’ Bank, 35 Mo. 128; Fadley v. Smith, 23 Mo. App. 87.]

The trial court properly ignored that part of the petition asking to reform the deed by qualifying the warranty clause so as not to warrant against the mortgage' which defendant assumed. All within the four corners of the deed should be consideerd in giving a construction to any part of it. By so doing it is apparent that the mortgage was not included in the warranty clause, as it had been assumed by the grantee in a preceding clause especially casting the duty and obligation upon the grantee to pay it.

The judgment should be affirmed.

All concur.