Bush v. Cella

¶1Pleading. The allegations of the cross-complaint are slovenly, ambiguous and uncertain as to some of the material facts necessary to sustain it; but the inference may be drawn, by a fair intendment from the allegations, that the defendant either caused the deed upon which the plaintiff relies to be executed to her as security for money loaned him by her husband ; or that it was executed to the plaintiff under an agreement with the husband, who paid the purchase money, that upon repayment by the defendant of the amount, with interest, he should cause the land to be conveyed to the defendant, and that the latter had entered into possession under the agreement, paid the taxes and made valuable improvements in part performance of the contract. In either event a defense or cause of action was defectively stated, and the plaintiff’s remedy was by motion to make more certain, and not by demurrer.

¶2Specific Performance. In the second contingency, the allegations, the truth of which is confessed by the demurrer, show the wife to be a naked trustee, or only a conduit for the passage of the title, and her coverture would present no argument against the enforcement of the contract.

¶3Reverse the judgment and remand the cause with instructions to overrule the demurrer.