This action is based on section 448, Revised Statutes, which is as follows: “Any attaching creditor may maintain an action for the purpose oh setting aside any fraudulent conveyance, assignment, charge, lien, or incumbrance of, or upon, any property attached in any action instituted by him ; and where several attachments, in favor of different plaintiffs, are levied, on the same property, all or any number of such plaintiffs may join in the same action for that purpose.”

The petition shows that different attaching creditors join in this action. Its object is to set aside, as fraudulent, a certain deed of mortgage, executed by the defendants, Golden & Company, to the other defendants, E. A. Phillips & Company, covering a large amount of dry goods, kept in different stores, a large quantity of railroad ties, situated at different points, and several parcels of land.

This provision of the statute is an ingraftment upon the statute concerning attachments. Such an action as this, by several attaching creditors in one suit, would not be permissible at common law or in equity. It is exclusively a statutory right and proceeding. As such, the petition and proof must show the existence of the facts specified in the statute giving the several attaching creditors the- right to maintain the action. To entitle these plaintiffs to bring and maintain the action, the *168petition must show, and the proof must establish, the fact; that the “several attachments are levied on the same property.” The petition fails to allege this essential fact. In respect of one of the writs, it states that it was “levied upon a portion of the goods, wares, and merchandise, situate in one of the storehouses, to an amount believed to be sufficient to satisfy said debt” ; while, in respect to the other writ, it is alleged that it was “levied upon a portion of said goods, to the amount believed to be sufficient to satisfy the debt.” So far from showing that the several writs were levied on the same property, the inference would rather seem that they were different parcels of the mortgaged property.

The evidence on the part of plaintiffs, so the abstract of the record recites, shows that “the levies made were upon different portions of said property.” This proved the plaintiffs out of court, and the demurrer interposed by defendants to the evidence should have been sustained.

The judgment of the circuit court must, therefore, be reversed and the petition dismissed. It is so ordered.

On motion for rehearing.

The motion for rehearing herein is based on the assumption that the decision is in conflict with section 3519, Revised Statutes. We will accept the contention of counsel that the petition stated a good cause of action in favor of the attaching creditors. That being the case, even conceding that section 3519, Revised Statutes, applies to a proceeding under section 448, Revised Statutes, the petition is admitted to aver that the several levies were made on the same property. This was essential to give a cause of action. • The answer tendered the general issue, and, in legal effect, is the same as if it had distinctly averred that the levies were not made on the same property. That was a fact at issue under the denial essential to be proved to give the plain*169tiffs the relief sought. It was not only not proved by plaintiffs, but was disproved by their own evidence. There can be no recovery where there is a failure of proof of a material averment. Groll v. Tower, 85 Mo. 249.

In Leisse v. Railroad (2 Mo. App. 105), affirmed by the Supreme Court (72 Mo. 562), two joint tenants sued the railroad company for damages, consequent upon the abandonment of condemnation proceedings taken against the joint property. In the petition, and at the trial, the plaintiffs sought to recover, as damage, liabilities incurred by them, under separate retainers of counsel, in defending the condemnation proceedings, and for their several loss of time in attending to the business of that defence.

There was, in fact, neither demurrer nor answer to this petition. There was a general demurrer, on the ground that the petition did not state a cause of action. This was not sufficient, however, to raise the question of misjoinder. Bliss Plead. 411; Allnut v. Leper, 48 Mo. 321; Greensburgh v. Sidener, 40 Ind. 424; Rev. Stat., sect. 3516. Yet the court held, in that case, that the evidence showing the fact of separate causes of action defeated a joint recovery. Doan v. Holly, 25 Mo. 357.

We fully considered this question, in deciding the case, before the opinion was prepared. Our conclusion was that section 448, Revised Statutes, under which the plaintiffs proceeded, was sui generis, in authorizing separate attaching creditors to maintain a joint bill in equity. The identity of the respective levies on the same property is in the nature of a jurisdictional fact. It is that which gives the several parties a standing in court, and the right of the pourt to grant the injunction. So, when the fact was developed, at the trial, by the plaintiffs’ evidence, that the levies were not made on the same property, the petition, in a material matter, was not proved, and, therefore, the plaintiffs must go out of *170court. On mature consideration, we are satisfied that the ruling was correct.

the motion for rehearing is denied.