
    PRATER v. BENNETT.
    1. The plaintiff’s declaration showing that she and a deceased person had been common owners of a described tract of land, and that while the latter was in life one of the defendants, by fraudulently causing a misdescription to be inserted in a deed to himself from the deceased conveying a portion of the land, had acquired possession of and color of title to more land than he really bought, and in consequence was holding adversely to the plaintiff land of which she owned an undivided half, the action was maintainable for the purpose of having 'the above mentioned deed reformed and for other appropriate relief therewith connected; and the legal representative of the deceased cotenant of the plaintiff was a proper party defendant to the case.
    2. Such a declaration was good against a demurrer alleging that the plaintiff “ set forth no facts which would show title in her in or to the property sued for, or any part thereof.”
    3. The action was not rendered multifarious because the declaration alleged and sought to recover damages for trespasses committed by the defendant first referred to, upon other lands 'owned in common by the plaintiff and the estate of the deceased, not covered by the deed above mentioned.
    May 11, 1896. Argued at the last term.
    Equitable petition. Before Judge Kimsey. Hall superior court. January term, 1895.
    Tbe petition of Harriet O. Bennett against Sbelton L. Prater and Mrs. A. C. Scales as executrix of James A. Bindley, was demurred to by Prater. Tbe demurrer was overruled, and be excepted.
    The petition alleges, that while plaintiff and James A. Bindley were comxnon owners of about sixty aci’es of land described, Bindley made a deed conveying to Prater nineteen aci’es thei’eof, at $7.50 per acre; that when Prater came to take a deed, be fraudulently represented to tbe maker that be bad measured tbe land, and that a piece of land on tbe end fronting four acres on tbe road would just make twenty aci’es, be at that time owning one acre on tbe road included in said boundary, not giving tbe distance in acres or otherwise from tbe road back to tbe line; and Eindley, relying on the honesty and integrity of Prater, made him a deed describing the land as Prater had said [would] convey to him the amount he had bought; when in fact said deed by its description covers and contains 32.32 acres, while it was intended to convey and contain only nineteen acres. The petition then sets forth a description of said 32.32 acres, and alleges that Prater has taken exclusive possession of the same, has it under fence, claims to own it in severalty, and has excluded and ousted plaintiff, and refuges to allow her to participate in the possession, or to- account to- her for any of the rents and profits of the same which he has received for the last four years. She is the owner of one undivided half of said land, and is entitled to a joint possession of the same and to half the rents and profits thereof. Prater is entitled to one undivided half-interest to- the 19 acres he purchased from Findley; and the estate of Findley is entitled to one undivided half-interest in the excess of said tract that Prater is claiming over and above the 19 acres he purchased from Findley. For each of the last four years Prater has wilfully, recklessly and without authority entered upon the other part of said tract of land belonging to petitioner and the estate of Findley, and has cut and carried away therefrom large quantities of timber of the value of $100. The prayers are, that the deed from Findley to Prater be reformed and corrected in its description, so as to convey to him the amount of land intended; that plaintiff be decreed to own an undivided half-interest in the land now claimed by Prater, except the one acre mentioned, and that it be settled as to whom the other half-interest in the excess now claimed by him, over and above what he purchased, belongs; that he be required to pay her the worth of half the rents and profits of said piece of land for the last four years, and such amount as may be shown to be equitably due her for the trespass and damage done by him to her other land; and for general relief.
    
      The grounds of demurrer are: (1) That plaintiff sets forth no facts which would show title in her to the property sued for or any paid of it. (2) That she sets out no cause of action. (3) That she shows no interest in the question of the mistake or fraud alleged in the conveyance from^ Findley to Prater, axid xxo right to have the deed reformed. (4) The petition is multifarious, in joining with a suit to x*ecover one piece of land an actioxx to recover damages •for trespass on another piece; and (5) in seeking to join in this action the executrix of Findley, his estate having no interest in any coxxtroversy shown in the petition between plaintiff and defendant.
    
      Perry & Craig, for plaintiff in error.
    
      J. M. Towery and W. F. Findley, contra.
   Lumpkin, Justice.

The petition of Harriet C. Bennett against Prater and the executrix of Findley was demurred to by Prater. The demurrer was overruled, and he excepted. The substance of the petition and of the demurrer appear in the official report.

1. The facts are somewhat complicated; but we are unable to perceive how the plaintiff could obtain the full relief to which she was entitled, without a reformation of the deed which Findley, her deceased cotenant, had made to Prater. It is time she was not a party to the deed, but a direct injury resulted to her fi’om the fraud practiced upon Findley by Prater, and she could not well lid herself of the consequences of this fraud until that deed was made to speak the truth. This could not be done without having Findley’s legal representative before the court; and hence, his executrix was a proper party to the proceeding.

2. As will have been observed, the petition distinctly alleges that the plaintiff and'the deceased, Findley, had been common owners of a described tract of land, as to> a part of which Prater had obtained possession and color of title by a fraud practiced upon Findley, under whom he claimed. The petition, therefore, contained enough, upon the subject of ownership, to withstand a demurrer alleging in general terms that the plaintiff had set forth “no facts t which would show title in her in or to the property sued for, or any part thereof.” The case does not fall under section 3401 of the code, which declares that the plaintiff in a statutory action for the recovery of land shall annex an abstract of the title relied upon.

3. Nor was the petition multifarious because the plaintiff sought thereby to recover damages for trespasses committed by Prater upon other lands which had been owned in common by herself and Findley, but were not embraced in the deed to Prater above mentioned. Under our system of pleading, both equitable and legal rights may be asserted in the same proceeding. The superior court having jurisdiction of the entire controversy between plaintiff and Prater, and having before it the representative of the only other person interested in the subject-matter of the dispute, it will be better for all concerned to have the various issues in controversy adjusted and disposed of by one trial.

Judgment affirmed.  