Westergreen

In this action the defendants’ demurrer to the plaintiffs’ second amended complaint was sustained by the court below without leave to amend. Judgment was thereupon entered in favor of the defendants, from which the plaintiffs have appealed.

The grounds of the demurrer were that the complaint did not state a cause of action, and that the plaintiffs did not have legal capacity to sue.

The action was one to declare a resulting trust in certain real property, and to compel a conveyance to plaintiffs of their alleged respective interests therein, and is founded upon the following alleged facts:

The complaint further alleges that at the time of the sale and for some time prior thereto Alice B. C. Beer was occupying and residing upon the property in question.

It is the contention of the plaintiffs that inasmuch as said defendant, their adult sister, was a joint devisee with the plaintiffs, and had acquired her interest In the property under the terms of their mother’s will (which left it to the four children share and share alike) she was therefore a.tenant in common with them. This may be conceded; and likewise it may be conceded, as is contended, that the law prohibits a tenant in…