Lanier v. Elder

Fish, C. J.

(After stating the foregoing facts.) We agree with the trial judge that the petition was not subject to general demurrer. In the conveyance sought to be canceled the consideration thereof is stated to be the sum of five hundred dollars, and in addition to that the grantee was to care for, maintain, and support the grantors during their lives; the grantors reserved the life-estate in the premises conveyed for their use and benefit, and the right to take possession of the property by the grantee during the lives of the grantors was for the sole purpose of operating and controlling the premises for the use and benefit of the grantors; and it was expressly stipulated that at the death of the grantors an absolute fee-simple estate was to vest in the grantee, “ provided he has complied with all the conditions of this deed as above set forth.” The petition alleged that the grantee had not complied with any of the conditions set forth in the deed, nor had he paid any part of the alleged money consideration. Therefore the grantors had the right, taking the allegations of the petition to be true, to treat the failure on the part of the grantee to comply with the conditions stated as a forfeiture of any interest he might have in the premises.

The paragraph of the petition which alleged that petitioners had loaned defendant a given amount of money, and for which they prayed a recovery, was specially demurred to on the ground that the allegations in the paragraph “ are immaterial and irrelevant to the cause of action declared on.” This demurrer was without merit. If defendant was indebted to petitioners as alleged, they could have judgment for the debt in this action. Since the uniform-procedure act of 1887 (Civil Code of 1910, § 5406), legal and equitable causes of action may be joined in the same petition.

While the original petition should have been positively verified before the granting of the restraining order, the absence of such verification did not require the refusal of an interlocutory injunetion, in view of the fact of the positive verification of the amendment which substantially restated the allegations of the original petition, and the further fact of the affidavits of the petitioners submitted on the hearing.

We conclude, in view of the conflicting evidence, and the rulings above stated, that the judgment must be affirmed.

Judgment affirmed.

All the Justices concur.