#### Uecke, Appellant, vs. Held and wife, imp., Respondents.

*December 7, 1910*—

January *10, 1911.*

*Pleading: Misjoinder of causes of action: Tendor’s lien on land.*

Where a complaint states no more than the facts necessary to show plaintiff’s right to declare and enforce a vendor’s lien on land, and shows that it was the pleader’s intention to state that cause of action, it should not he held that a cause of action at law has been joined therewith merely because the prayer for relief is that plaintiff have judgment for the unpaid purchase price and, in case it be not paid by a day to be named by the court, that it be adjudged and enforced as an equitable lien on the land.

Appeal from an order of the circuit court for Milwaukee-county: OkkeN T. Williams, Circuit Judge.

*Reversed.*

June 1, 1906, Wilhelm Uecke and his wife *Caroline,*the-plaintiff herein, sold to the defendant Jacob Held certain real-estate which they owned jointly. Four hundred dollars of the purchase price of $1,100 was paid in cash and the purchaser gave them a promissory note due in one year for the balance. By direction of the purchaser, Jacob Held, the *417deed was made to bis son, the defendant *George L. 'Held.*Payment of the note for $700 was extended for a year. Upon its becoming due payment was refused. The complaint alleges that the son holds the real estate in trust for the father; that the defendant *Annie Held*is the wife of *George L. Held;*that the vendor, .Wilhelm Uecke, has died intestate; that prior to his death he assigned his interest in the note to the plaintiff, and that she holds the note by virtue of this assignment and by right of survivorship; that the defendant *George L. Held*took the conveyance of the property with full knowledge that $700 of the purchase price of the property was unpaid and evidenced by this note; and that no action or proceeding has been taken to collect said note or purchase money.

It is alleged that the defendants Ered Pflughoef and his wife Martha have a land contract executed in their favor by the defendant *George L. Held*on which there is still due about the sum of $900.

“Wherefore, - the plaintiff demands judgment against the defendant Jacob Held for the sum of seven hundred ($700) dollars, with interest thereon and costs of suit, and in case the said defendants fail to pay said judgment by a day to be named by the court, that said purchase money so unpaid and interest be adjudged and allowed as a lien on the aforesaid real estate, and that plaintiff be adjudged to have an equitable lien upon said lands for the unpaid purchase price thereof, aforesaid, and that the said defendants and all persons claiming under them since the commencement of this action be barred and foreclosed of all right, title, interest, lien or equity of redemption in said lands, and that the same be sold under the direction of this court, and at such time and in such manner as the court may direct, and the plaintiff be paid the amount of said lien out of the proceeds of such sale, together with the expenses of such sale and the costs of this action, and that in case of deficiency the plaintiff have judgment against the defendant Jacob Held for the amount thereof, and for such other or further relief as may be just and equitable.”

*418Tbe court sustained a demurrer of tbe defendants *George ■L. Held*.and *Annie Held*on tbe ground of tbe improper joinder of causes of action and because tbe complaint did not state facts sufficient to constitute a cause of action against the defendants. This is an appeal from tbe order of tbe court sustaining tbe demurrer.

Tbe cause was submitted for tbe appellant on tbe briefs of Lenicheclc, Robinson, *Fairchild Boesel,*and for tbe respondents on tbe brief of *E. J. Ludwig.*

Siebeckee, J.

Tbe plaintiff claims that tbe court erred in sustaining tbe demurrer because tbe complaint alleges sufficient facts to constitute a cause of action for relief by way of declaring and enforcing a vendor’s lien, and because no other cause of action is alleged. Tbe trial court field that tbe averments constituted a cause of action at law in addition to such an action in equity. Tbe facts alleged are material and pertinent to a statement of a cause of action to declare and enforce a vendor’s lien and must be so viewed. It is clear from tbe allegations of tbe complaint that tbe pleader’s object was to state tbe facts for relief so as to establish and enforce a vendor’s lien. Tbe trial court evidently viewed tbe facts alleged as stating a cause of action on tbe note, because tbe plaintiff asks that judgment be awarded for tbe unpaid purchase price against Jacob Held, the maker of tbe note. Tbe complaint, however, states no more than tbe material facts showing tbe primary right of a vendor to declare and enforce a vendor’s lien. It is essential to such a cause of action that tbe court ascertain tbe amount of tbe purchase price remaining unpaid and award judgment against tbe debtor therefor. Anri tbe demand for judgment against tbe debtor for such amount does not give the complaint a double aspect of stating two causes of action, for a recovery at law on the note and to enforce a vendor’s lien. If tbe complaint be tested in tbe light of tbe subject of controversy presented, it is plain that but *419one primary right is sought to be enforced. The allegations are clearly sufficient to constitute a cause of action to enforce plaintiff’s right to a vendor’s lien, and, when so interpreted, all the facts alleged and th© relief prayed harmonize with such a purpose and object.

The question of fact as to whether or not the taking of the note from the vendee was accepted as payment of the balance of the purchase money is sufficiently negatived by the allegations of the complaint, which refute respondents’ claim that the facts alleged show that it was accepted in payment of the balance of the purchase price.

We consider that the complaint states a good cause of action to declare and enforce a vendor’s lien and that there is no misjoinder of causes of action.

*By the Gourt.*— The order appealed from is reversed, and the cause remanded to the circuit court with directions to enter an order overruling the demurrer and granting the defendants the privilege of answering upon the usual terms and conditions.