Reynolds v. Lynch

Per Curiam. The greatest scope of relief to which plaintiff would be entitled, as against the surviving trustee, would include a conveyance to plaintiff of the legal estate in the lands (the subject of the trust), which his assignors had when the trust was created. Assuming the fact to be, as alleged in the complaint, that the assignors of plaintiff were owners in fee of all the lands when the deed of trust was executed, and that the assignors of defendants had no right, title, or interest therein — a fact which is admitted by the demurrer—the complaint con[443]tains no statement of a cause of action against the defendants, other than Lynoh, in the absence of an averment that they are asserting some claim by reason of having joined in the execution of the trust conveyance.

The plaintiff omits to allege such assertion of claim, but avers that the defendants in possession of portions of the same as he is advised and believes are tenants at will of Lynch, the trustee.

If the matter pleaded, as last stated, be sufficiently averred, it does not, of itself, make the defendants in possession proper or necesssry parties. Their tenancy at will may of course be terminated by plaintiff, when a conveyance is obtained from the trustee. It is not pretended that they claim anything except as tenants at will of the trustee.

Judgment affirmed.