ON APPLICATION OF REHEARING.
MAYFIELD, J.The majority of the court, consisting of Anderson, McClellan, and Sayre, JJ., and the writer are of the opinion that' the demurrer to the bill was well taken, and was properly sustained by the chan*280cellor, which results in the granting of the application for a rehearing, the setting aside of the judgment of reversal, and the entering here of a judgment of affirmance.
We are now of the opinion that the bill in its present shape will neither authorize the relief of specific performance specially prayed, nor warrant the declaration and enforcement of a trust, as we held on the original hearing, as is shown by the opinion of Simpson, J., who then wrote for the majority.
The hearing being on .the demurrer to the bill, the averments, of course, must be construed most strongly against the complainant. So construing the averments, we now hold that the plain meaning thereof is that the complainant ■ voluntarily consented to the sale or exchange of the lands, and consented to the deed of Davis’ being made to her and her husband jointly, in settlement of their respective rights to the land sold or exchanged. ■
If these be the true facts of the case, and the averments are susceptible of this construction, then there could be no specific performance of the contract, because it was wholly executed in accordance with the agreement and understanding of the parties,, and, of course, there would be no trust, either constructive or resulting. Moreover, the averments show that the legal title to the land sold or exchanged was in complainant, and that the husband at best had a mere equity; therefore the conveyance to Davis was a conveyance by the complainant, in which the husband joined merely for the purpose of perfecting the conveyance, as the statute directs shall be done in the case of a conveyance by a married woman. There is no intimation that these deeds did not correctly declare or recite the real agreement between the parties.
*281There is no claim or contention in the bill, as it now stands, that the complainant was overreached, deceived, or defrauded by arts or deception on the part of the respondent. In other words, there is nothing to show that complainant did not consent to and acquiesce in all that was done as to the sale or exchange of lands; nor is there any intimation that she was deceived or persuaded by undue influence to so consent to or acquiesce in what was done by the respondent and Davis.
We are of the opinion, however, that there is nothing substantial in the point raised by appellee on this rehearing as to inconsistent and repugnant averments, in that the bill averred an “obligation to convey”; whereas the exhibit referred to showed an “executed conveyance.” At most, it ivas but a misnomer of the instrument referred to, and Avhich Avas made an exhibit to the bill. The instrument set out >vas unquestionably the same one referred to in the averment. To hold that this mere misnomer was a material repugnancy Avould be draAving too fine a bead in equity procedure.
It, hoAvever, folloAvs from Avhat Ave have said that the decree of the chancellor must be affirmed.
Affirmed.
Anderson, McClellan, and. Sayre, JJ., concur. Simpson and Somerville, JJ., dissent. Doavdell, C. J., not sitting.