Appellee filed her bill in this cause, averring her sole ownership of a tract of land in Clay county, and seeking the vacation, cancellation, and annulment of a deed acquired by defendants at the end of a proceeding for the partition by sale and a deed executed by herself to defendants purporting to convey the same tract. The proceeding in question and the deeds referred to are averred to have been engineered and procured by the fraud of defendants. The trial court overruled exceptions and a demurrer to the bill.
The averments of the bill are designed to present a history of the process by which, through the alleged manipulations of defendants, complainant lost her title to the tract of land which had been the homestead of her deceased husband. Complainant might have omitted averment of the proceeding in the probate court, since there was no record of it, and what ought to be of record must be proved by record; but we cannot see that a candid statement of what was there done, purporting to vest title in one of complainant's children, though not effectual to that end, because the homestead had vested by law in complainant alone, and because there was no record showing anything different, should be considered prolix. It was not in fact stated with prolixity, or impertinent, or scandalous. Nor were other parts of the bill, to which defendant's exception was directed, impertinent to a fair statement of complainant's case, or otherwise objectionable.
Nor was the demurrer well taken. If it had appeared that complainant's youngest child was interested in the homestead as a tenant in common, it would have been necessary, of course, that he be made a party, either complainant or defendant; but the bill shows that in law and fact the child is not so interested, and this status must be accepted, as against the demurrer and until the proof may show the contrary.
Nor is the bill multifarious. We have stated the purpose of the bill, and that purpose can only be accomplished effectually by the cancellation of both the deeds under which defendants claim.
The fraud complained of is stated with sufficient particularity. False and fraudulent statements and representations inducing the decree of sale and the deed to defendants are stated, and whether proceeding from one or the other of the defendants is immaterial. If there was a purpose to get complainant's property by fraud, as the bill avers, it can avail defendants nothing that the execution of the plan was committed in part to one and in other part to the other of them. Nor do we find inconsistencies in the bill, nor that it is bad for that, being an old and ignorant negro woman, complainant relied upon statements made by defendants, when, had she been more alert, better informed, and less dependent, she ought to have known better. In short we think the bill will suffice as against the demurrer.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur. *Page 442