Opinion
October 16, 1908.
T. Ellett Hodgskin [ George W. Wingate with him on the brief], for the appellants.
Earle W. Webb, for the respondent.
The complaint is for specific performance of a contract of sale of real property by the defendant J. Joseph Kindred. It alleges that he was the owner and entitled to the possession of the property when he made the contract, but that the title stood in the name of his sister "for his use and benefit", and that since she has conveyed it to his wife, and that the latter holds it "for his use and benefit"; and they are made parties defendant with him. They demur together on the grounds (1) that the plaintiff has not the legal capacity to sue, and (2) that the complaint does not state facts sufficient to constitute a cause of action. The first ground is frivolous. The second is not good. The complaint certainly states a cause of action against J. Joseph Kindred. If each of the two other defendants severed, and demurred that it stated no cause of action against her, another question would be presented, as neither of them signed the contract of sale. However, the allegations of the complaint may be broad enough to bear the interpretation that by the terms of the deeds to them J. Joseph Kindred has the title and the power and right to sell the property, for no trust seems to exist by said deeds; in which case, under the liberal rule in equity as to proper parties, they would be such. It is enough in equity if they be proper although not necessary parties.
The judgment should be affirmed.
WOODWARD, JENKS, HOOKER and RICH, JJ., concurred.
Interlocutory judgment affirmed, with costs.