PLEADING.

[Franklin Circuit Court,

January Term, 1891.]

Shearer, Stewart and Shauck, JJ.

#### EDMINSTON GWYNNE ET AL. v. JAMES K. JONES ET AL.

1. Only Copies of Instruments Evidencing Indebtedness Should be Attached to Pleadings.

Sections 5085 and 5086 of the Revised Statutes authorize a pleader to attach copies of such instruments only as are evidence of indebtedness, and, instruments for the unconditional payment of money only.

2. Petition Attacking Title need not Negative Defendants being bona fide Buyer.

None but instruments under sec. 5086, when attached to a petition, will be looked to for the purpose of supplying averments necessary to constitute a cause of action.

. Copies Attached under .-section 5085 not Available for Averments.

The facts which entitle a defendant to the rights of a purchaser of real estate for value, and without notice of an infirmity in the title of his grantor, are matters of defense which need not be excluded by the averments of the petition.

On Appear from the Court of Common Pleas of Franklin county.

Submitted on general demurrers to the petition.

The petition alleges that on March .14, 1857, Ichabod G. Jones died testate, leaving Cynthia K. Jones, his widow, and Louise C. Jones and three of the defendants his heirs at law, that Louise C. Jones having intermarried with one Baldwin Gwynne, died, leaving the plaintiffs her children and only heirs. By his last will, Dr. Jones appointed P. B. Wilcox, John Miller and the defendant, James L. Bates, trustees of certain property, including the real estate in controversy; they accepted said trust and continued in the discharge thereof until the death of Wilcox; thereafter Miller and Bates continued to administer the trust until August 6, 1872, when they filed in the probate court what purported to be a final account of their administratiop of said trust, and tendered their resignation as trustees, but said account was never settled, nor was said resignation accepted. Miller died June 4, 1881, leaving Bates the sole survivor of said trustees, but he has performed no adt as trustee since the filing of said account.

At his death Dr. Jones was seized in fee of the undivided two-thirds of certain tracts of real estate,-and in January, 1859, in proceedings for that purpose, fifty acres thereof, now lying in the city of Columbus, was set off in severalty to his four children, including Louise.

On March 16, 1869, Miller and Bates, as trustees, made a plat and sub-division of said fifty acres into lots numbered from one to fourteen inclusive, and laying out thereon a street fifty feet in width. May 15, 1871, the trustees sold and conveyed to the defendant, Nelson, twelve of the fourteen lots, not including the lot in controversy, number three. April 1, 1872, Miller and Bates “executed and delivered a pretended deed of said lot, numbered three, to the Friend Street Railroad Co. The consideration named in said deed was one dollar, *149but in fact no consideration was paid therefor, and said deed was wholly ineffectual to convey said premises, or the title of the heirs of said Ichabod Jones thereto to said Friend Street Railroad Co., as said company, its officers and agents then well knew; but that the grantees and mortgagees of said premises, the present owners and occupiers thereof are claiming and causing to be understood that said deed did convey to said railroad company the title of said devisees under the will of Ichabod G. Jones to said premises, and that by virtue of said deed, and the successive conveyances hereinafter mentioned, said grantees and mortgagees have a good and valid title to the parts of said lot three, held by them respectively as hereinafter set forth.”

The lot was then of the value of about $2,000.00, as said Miller and Bates then knew. The lot was never divided among the devisees of Dr. Jones. On April 2, 1872, the railroad-company conveyed said lot in fee-simple to the defendant, Nelson.

October 8, 1873, Nelson made a plat and sub-division of the fifty acres into one hundred! and sixty-seven lots, dedicating streets and alleys thereon to the public use.

The petition then shows the portions of said lot three, now claimed by the numerous1 defendants as grantees and mortgagees under deeds from Nelson according to his subdivision, and alleges that said deeds and mortgages “were made with full knowledge and notice on the part of the said grantees and mortgagees, respectively of the rights of these plaintiffs, and the other devisees therein, under the said will of Ichabod G. Jones.”

The plaintiffs allege that by virtue of said will, upon the death of their mother they' became and are now seized in fee-simple of an undivided one-fourth part of said, lot number" three of Jones Heirs’ sub-division, and that the deed from Miller and Bates to the Friencft Street Railroad Co. is a cloud upon their said title.

The petition contains no averment as to the duties of the trustees or of the powers con-ferred upon them by the will of Dr. Jones. Attached to the petition and^ marked for identifi-cation are copies of the will, of the plat made by the trustees, of their deed to the street railf road company and of the plat of Nelson’s sub-division, and the same “are made parts of this petition.”

The will appoints the three trustees named in the petition, directs the payment to them by the executors of all money left in their hands after paying debts and legacies, directs that they shall have control of all property of the testator not specifically disposed of, and that when they shall deem it to be for the best interests of all concerned they shall divide .the real and personal property remaining according' to the laws of descent and distribution in force at the time of the division, but the property still to remain under the control and management of the trustees, they to keep separate accounts and pay over the proceeds to the proper parties interested.

The twelfth item directs that upon the death of either of his children her share shall pass in fee-simple to her lawful child or children.

The fifteenth item of the will is as follows: “I hereby authorize and empower my said trustees at their best discretion, and whenever they shall judge it best to sell, and by proper deeds or authorized instruments convey any part of my real estate and apply the proceeds to carrying out the purposes of this will.”

The plaintiffs pray that “the said deed may be adjudged to be null and void and the title of these plaintiffs to their said interest in said lot three of Jones Heirs’ subdivision may be quieted and set off to them in severalty; that partition may be had of said premises; that • possession may be awarded to them of the portion of said premises so aparted to them; that the holders of the several parts of said premises may be adjudged to make proper conveyances to the plaintiffs; that an account may be taken with said several defendants holding adversely to plaintiffs of the rents and profits of the respective portions held by them; that in the event that possession cannot be awarded to them of that portion of said premises held by the city of Columbus (streets and alleys) the value thereof may be adjudged to them, and for all other relief to which they may in eguity be entitled.”

SHAUCK, J.

This petition defies the familiar rules that the petition must contain ‘‘a statement of the facts constituting the cause of action, in ordinary and concise language,” and that evidence must not be pleaded. The will and deed.might, in the progress of the case, become important as evidence, and the plats might become convenient for illustration; but that they ought not to encumber the record is too clear for controversy.

The real question is whether the petition should be reformed by motion, or held insufficient on demurrer. Section 5085, Rev. Stat., provides that when the action is 'founded on a written instrument as evidence of indebtedness, a copy thereof must be attached to and filed with the pleading.” But these instruments are not of that character,nor does the section provide that the copy attached shall be a substitute for any of the allegations that are necessary to constitute a cause *150of action. The instrument attached forms no part of the pleading. Larimore v. Wells, 29 O. S., 13.

Section 5086 provides that “in an action * * * founded upon * * * an instrument for the unconditional payment of money only, it shall be sufficient for the party to'set forth a copy of the instrument, and to state that there is due him thereon a specified sum which he claims, etc. ” In the case to which it applies, this section does excuse pleader from alleging all the facts that would otherwise be necessary to constitute his cause of action. It authorizes him to make and rely upon the averment of indebtedness, which, but for the section, would be but a legal conclusion from the facts necessary to be alleged. But' none of these are instruments for the payment of money unconditionally or in any event. The section applies to no instruments except those described. Bently v. Dorcas, 11 O. S., 398, 408.

We are aware of no cases except those mentioned in the two sections cited ■which authorize the attaching of copies of instruments to pleadings in ordinary •civil actions, and only the latter section makes the copy a substitute for any .allegation, of fact necessary to the complete statement of a cause of action. ■Certainly there is no warrant in the code for attaching instruments of this ■character. It would not be profitable to cite the numerous cases where it has ibeen held that motions to strike out copies of such instruments should be sustained ■where the ’ pleadings contained the averments of fact necessary to constitute a cause of action. In this petition there is no averment in any form that the deed to the Friend Street Railroad Co. was in excess of the power vested in the trustees by the will of Dr. Jones. It is framed upon the theory that the court will look through the copy of that voluminous document, and itself supply such necessary averments as it thinks the evidence would support. In the absence or appropriate provisions, it-ought not to be assumed that such an abuse was contemplated by a reformed system of civil procedure. If we should strike these copies from the petition, as without doubt we ought to do upon motion, there would remain neither averment nor evidence that the trustees had exceeded their authority. A court ought not concern itself with the reformation of a pleading, which when reformed, would be held bad upon general demurrer. The demurrer admits the allegations of fact that are found in the petition, however vague, redundant or informal they may be. But it does not admit the truth ot averments that are not made even though there be improperly attached copies of documents whose evidential effect would be to sustain such averments if they had been made. In Lynd v. Caylor, 1 Handy, 576, a demurrer was sustained to a petition defective as is this, and Gholson, J., stated the rule thus tersely: “Except in the cases specially authorized by the code, each petition should embody in itself, and without reference to any other paper or exhibit, the facts which constitute the cause of action.”

But counsel on both sides have argued the case upon the theory that, in effect, the petition contains all the averments which the exhibits would sustain; and we have considered the case as though such averments had been made.

The fifteenth item of the will authorizes the trustees, at their discretion, to sell and convey the real estate of the testator. We have not found in the will any authority for the execution by them of deeds of gift. It is an inference of fact, rather than a presumption of law, that if the deed to the Friend Street Railroad Co. was made without the payment of a money consideration, it was in pursuance of an agreement to contribute its value to the construction of the road to enhance the value of the other lots upon their plat. It cannot be regarded upon demurrer in view of the averment that the deed was wholly without consideration, although upon the expressed consideration of one dollar.

It is not averred that any of the defendants holding under the street railroad company took title with knowledge that the deed of the trustees to it was a deed of gift. Certainly, they are affected with notice of all facts properly appearing upon the record. They acquired title under the will of Dr. Jones, and subject to all the restrictions which it placed upon the power of the trustees; and through *151¡the deed from them to the company, and subject to all defects in their execution -of the power which the deed discloses. '•

Watson & Burr, for plaintiffs.

J. T. Holmes and others, for defendants.

But the record did not advise purchasers from the street railroad company that -the deed from the trustees to it .was a deed of gift. The consideration ■expressed in the deed is one dollar, which, being a pecuniary consideration, however ¡small, denoted a sale. Devlin on Deeds, sec. 23; Jackson v. Alexander, 3 Johns., 484; Skerrett v. Presbyterian Society, 41 O. S., 606. It cannot, therefore, be •said that the present holders of the property are chargeable with notice from the record of the fact, now alleged, that the original deed was in excess of the powers ■of the trustees.

But the recital of tne deed as to the consideration may be contradicted ¡»y the beneficiaries, and the petition alleges that although a pecuniary consideration is recited in the deed, none was in fact paid. If these allegations are true, the plaintiffs might have maintained their action against the grantee, in that deed. The petition does not show affirmatively that the defendants who hold under ■the street railroad company are purchasers for value without notice of the alleged ■fact that the trustees had attempted to execute a deed of gift; nor, as we have seen, does it show directly or inferentially that they did not purchase for value and without such notice. In this aspect of the case it is sufficient that the beneficiaries show that as between the parties to that deed it was invalid; for it would seem, upon principle, that one who stands upon the rights of an innocent purchaser for value, must himself allege and prove the facts out of which such rights arise. In the absence of such allegation and proof, his position must be taken to be that of the former grantee. Perry on Trusts, sec. 219; Weaver v. Barden, 49 N. Y., 286; Elstner v. Fife, 32 O. S., 358.

On the ground first considered the demurrer will be sustained.