
    F. W. Gatzweiler, Trustee of Levice Mittalberger, and Levice Mittalberger, by her Next Friend, John C. Mittalberger, Respondents, v. Albin Morgner, Appellant.
    1. Mary T. Dugan’s Administrator v. Albin Morgner, ante, p. 48, affirmed.
    
      •Appeal from Sixth District Court.
    
    
      E. A. Lewis and II. C. Lackland, for respondents.
    
      Krum & Decker, for appellant.
   Bliss, Judge,

delivered the opinion of the court.

This is in all respects a similar action to the one decided at this term against the same defendant, and in favor of Mary T. Dugan’s administrator. The estate of the wife is created by a deed precisely like the one in that case; the deception complained of is the same; the object of the action is the same, and the circumstances throughout are the same, except that Levice Mit-talberger, to whose use the conveyance was made, is still living.

The instructions asked by defendant, and refused, were in the nature of a demurrer to the evidence and pleadings, and the chief points made in his counsel’s brief are that the, estate is not a separate one, and that the husband should have joined in the suit. Those points were considered in the other case, and I will only add that if he objects to the petition because “ there is a defect of parties,” or because a plaintiff “is not a necessary party,” he should have demurred instead of answering to the merits. (Wagn. Stat. 1014 — 15, ch. 165, §§ 6, 10.)

The judgment is affirmed;

the other judges concurring.  