Page:Dakota Territory Reports.djvu/48

 specific relief tind for a jadgment for damages. Manifestly here is a misjoinder of actions—a pleading bad upon the face. Bntcan the defendants now avail themselves of any advantage on account of the improper joinder of actions? We think not. This objection should have been taken by demurer, motion to strike out, or, perhaps, by motion to compel the plaintiff to elect upon which cause of action he would proceed.

These rights the defendants lost the moment they took issue upon the plaintiff's petition. They then waived any objection to the first pleading, except such as were jurisdictional, and that the complaint or petition as a whole did not state facts sufficient to constitute a cause of action.

This waiver is to be construed like a stipulation or agreement, that defendants are content with the plaintiff's pleadings, and take issue upon it as presented.

It is unnecessary longer to pursue this investigation, as touching the equitable relief sought, as none was decreed, and, therefore, that branch of the case is disposed of.

The judgment appealed from then, being judgment in an action at law, the first natural inquiry would seem to be, are the appellants, in this court, in such a way as to urge objec- tions if they really exist?

Without attempting to settle the practice upon that question, as this is, probably, the only cause that will be presented under the Act of 1862, the same being repealed, we have concluded to regard this case as properly before us, and to dispose of it upon the merits.

Before considering the evidence, it is proper we should dispose of a preliminary quesiion: Is a deed, in the usual and ordinary form, such a written agreement that the parties to it are estopped from showing, by proof, aliunde, the true an^ actual or additional consideration, beyond the consideration named in the deed?

We think not. And we regard the following authorities sufficient upon that point, although many more might be cited: (36 Maine, 413; 7 Greenleaf, 175; 23 Wisconsin, 519; 26 New York, 378; 17 Ohio, 617.) But the appellants insisted

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