majority">Scott, Judge,

delivered the opinion of the eourt.

Elizabeth Pensenneau, the plaintiff, claims that a trust results to her in the land in controversy, because it was an inheritance derived from her father ; and her husband, in making a partition with her co-heirs, took a deed for her share in his own name, by which he clothed himself with a trust as to it; and now that he is dead, that she is entitled to have it executed by a conveyance to her of the title in fee simple.

If it were conceded that the law is as assumed by the plaintiff in relation to a resulting trust in her favor, yet a difficulty arises from the fact that the deed in which she joined with her husband in making partition with her co-heirs, was not executed by her in such a way as to pass her interest in the inheri - tance derived from her father, so that she is now in the same situation she would have been had no partition been made. Her *34husband had a life estate in her land, and, as the matter stands, that estate was the sole consideration which was given for the land, which he acquired by the partition among the co-heirs of his wife, the plaintiff. Elizabeth Pensenneau, the complainant, not having acknowledged the deed in such manner as to pass the estate she had in the land, she now stands as though the partition had not been made, and is at liberty to assert her rights, freed from all embarrassments, so far as appears from the record, created by her husband’s deed to her co-heirs.

The foregoing observations apply to the lot situated in St. Louis. As to the tract of land lying in the state-of Illinois, the deed of partition was effectual to convey all the estate owned there by the plaintiff. In the partition made in Illinois, the husband of the plaintiff took the conveyance in his own name, and the portion thus acquired he conveyed as part of the consideration for the lot originally assigned to Caya and wife in the partition made of the inheritance situated in St. Louis. Now, if, in making a partition of lands in Illinois, belonging to the wife, as a co-parcener, the deed should he taken in the name of her husband, whether a trust results to the wife is a question to be settled by the laws of that state. If it should be found that the husband in such case would hold as a trustee for his wife, then the question arises whether lands here acquired by an exchange or sale of land in Illinois will be impressed with the trust with which it was clothed in that state. According to the views heretofore entertained by this court, it would seem that lands thus acquired would be held subject to the trust with which the land was clothed, for which they are exchanged or sold. (Depas v. Mays and wife, 11 Mo. 317.) The question arising under the partition made in Illinois, by reason of the husband taking the deed in his own name, has not been discussed in reference to tho laws of that state, and we are unwilling to hazard an opinion in reference to it, especially as it is not necessary in the aspect which the case now assumes.

We are embarrassed in relation to that part of the petition *35which asks for a partition of the premises as alternative relief to that sought by the case as state 1. We do not know on what principle it is founded. Is it to be sustained by the provision contained in the third section of the 17th article of the present practice act, which says: “The court may grant any relief consistent with the case made by the complainant, and embraced within the issue ?” What is the meaning of this provision ? Oan it be that the plaintiff may, in his petition, ask that, if he fails to make out his case, as stated, that then the court may from the facts, as they turn out, try another and a different action, and give the party the alternative relief sought ? Can a plaintiff'say the facts of his ease are one way, and ask the relief to which they entitle him, and then require the court, if he should on the trial fail to prove his case, to try another cause of action, and ascertain whether he is not entitled to other relief ? Here is a petition to enforce a trust. The facts are stated with an eye to that relief. Now, .on what principle can the plaintiff ask that, if he is mistaken in the faets, as stated, that then his case may be turned into a petition for partition. The plaintiff' must ascertain the faets of his case before he v brings his suit. He must state them in a way to entitle him to the lelief he seeks. If, on the trial, it turns out that he was mistaken as to the facts of his case, the third section of the 11th article of the practice act affords him a remedy. We understand the clause above cited to mean, that, if on the facts as stated, the plaintiff is entitled to relief of two or more kinds, and he asks for only one kind, yet failing to obtain that, he may have any other relief to which his case, as made, entitles him. He eannot ask in his petition that, iff he should be mistaken as to its remedy and fails to obtain the relief he seeks, then that another and a different cause of action may be tried. Eor the purposes of his action, he must assume., that the facts ¡are one way and asks the appropriate relief. He must rely o.n the facts as stated; if he is mistaken, then the third section of the 11th article of the practice act prescribes a remedy which he *36must ask from-the court, and' not come here and object for the-first time that it was not allowed him. (Robinson v. Rice, 20 Mo. 229.)

The alternative relief here sought is founded on the assumption that the cause of aetionis wholly misconceived, and is entirely inconsistent with and-foreign to the case as stated in the-petition. Moreover, the necessary parties were not before the-court in order to-make a partition of the premises. .

The difficulty in this case grows out of the omission or unwillingness of the plaintiff' to determine on what grounds she ■ will stand. She must either abide by. the partition or disclaim it. If she insists that there was a binding partition, let her-make a deed; confirming it, the only effectual mode by which it-can be done; Then she will be in a position to claim an enforcement of the trust, if there is any. If she is unwilling to-do this, then let her declare the nullity of the deed, of partition, growing, out of the imperfect mode of executing it:.. Failing to-do one or the other of these-things, she will not be permitted to-litigate-her rights, without' determining what they are, before-she institutes her suit. The judgment is reversed, and the bill, dismissed without prejudice.

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