I am in accord with the ruling that plaintiffs' petition does not state a cause of action since they have failed to aver that the lease, indivisible unilaterally, has been actually divided by consent of all of *Page 195 the parties. However, the maintenance of the exception does not, in my opinion, authorize the absolute dismissal of the suit, for as stated in our recent decision in Bates v. Prudential Insurance Company of America, 192 La. 1029, 190 So. 120, 122:
"It is well established that an exception of no cause of action based upon an insufficiency of allegations in the petition is really an exception of vagueness, and although it is meritorious and sustained, the plaintiff would still be entitled to amend the petition to supply the want of allegations of fact. Brunson v. Mutual Life Insurance Company of New York,189 La. 743, 180 So. 506; Reeves v. Globe Indemnity Co. of New York,185 La. 42, 168 So. 488; McCoy v. Arkansas Natural Gas Company,184 La. 101, 165 So. 632; Lejeune v. Lejeune et al.,184 La. 837, 839, 167 So. 747; Davis v. Arkansas Southern Railway Company, 117 La. 320, 41 So. 587".
Thus, in the instant case, if the plaintiffs are able to allege that the lease, though originally indivisible, has been in fact divided by and with the consent of all parties, they should be permitted to supplement their pleadings and not suffer a summary ejectment of their action.
For these reasons, I respectfully dissent from that part of the decree which dismisses plaintiffs' suit. *Page 196