McIntire v. Cater

Opinion by

Judge Lindsay:

The allegations of appellant’s petition constitutes a cause of action, and in the absence of an answer, if true, entitled him to a recovery. He alleges a purchase of the house and lot from the appellee, the acceptance of the legal title from Kirkpatrick at the instance of the appellee, the occupancy of the property by the tenant of the latter, and the agreement on the part of the appellee to deliver him the possession, also the refusal of the tenant to surrender and the appellee to deliver the possession until several months after he was entitled to it, under the contract. These facs are admitted by the demurrer, and if so there is nothing appearing from the deed or any allegation in the petition that the appellant was required to look to the tenant of Kirkpatrick for the possession of the property.

The judgment of the court below is reversed and the cause remanded with directions to overrule the demurrer, and for further proceedings consistent with this opinion.