Wadkins v. Hill

The complaint of the appellants alleges-ownership of land, and prays that the title may be quieted. The first paragraph of the appellee’s cross complaint sets forth facts showing that an instrument executed by the appellants, although in form a deed, was in fact a mortgage, and asks that it may be foreclosed as a mortgage. There can be no doubt that the theory upon which this pleading is con*544rstructed is that the instrument is a mortgage, ^nd unless it is ¡good upon this theory the court erred in overruling appellants’ demurrer. It is settled law that a pleading must be •good on the theory on…