This cause was instituted in the circuit court of Stoddard county at its March term, 1899, on the petition below, except that part marked and indicated as “Amendment.” The amended petition was filed March 18, 1899, and omitting parties, is to wit:

“Plaintiffs for amended .petition state that, plaintiff, E. M. Ladd, was and is the husband of Emma E. Ladd, now deceased, and that Claud Ladd and Lena Ladd are her children and heirs at law, and that plaintiff E. M. Ladd is the father and duly appointed and qualified guardian and curator of plaintiffs, ClaudLadd andLenaLadd,who are minors under the ages of twenty-one and eighteen, respectively. That the defendants above named are the widow, children and grandchildren of J. O. Montgomery, deceased, and defendant, Amanda Montgomery (with the husbands of those married), and are the only heirs at law of said J. O. and Amanda-Montgomery.

“Plaintiffs further state that on tbe 5 th day of Februáry, 1891, that said J. O. Montgomery and defendant, Amanda Montgomery, made, executed and delivered for said Emma E. Ladd, wife and mother of plaintiffs, their warranty deed conveying to her lots three (3) and four (4) in block four (4) in Deal & Boughton’s addition to the town (now city) of Dexter, in Stoddard county, Missouri, for the consideration of five hundred dollars, which sums were well and truly paid to the said J. O. Montgomery and Amanda Montgomery as therein stated, which said deed was duly recorded in'book No. 10 at page 373, for recording warranty deeds for said county, on the sixth day of February, 1891, at one o’clock and ten minutes p. m. of- said day.

“That afterwards on the nineteenth day of March, 1896, *364Montgomery, and said administration has been entirely closed, final séttlement made therein, and the said administrator duly discharged therefrom.

‘‘Plaintiffs further state that the defendant herein, the said Amanda Montgomery, as widow, and the other defendants as heirs at law of the said J. C. Montgomery, have received by descent from the said J. C. Montgomery and hi? estate, property, effects and real estate of and to a greater sum and amount and value than the said sum of two hundred and forty-one dollars and fifteen cents and attorney’s fees and costs herein, and especially the following described real estate situate in the county of Stoddard and state of Missouri, to wit:

“Beginning at the southwest corner of the northeast quarter of the southwest quarter of section eighteen (18) township twenty-five (25) range ten (10) east, running thence north 168 rods to a point 72 rods south of the northwest-corner of the northeast quarter of the northwest quarter of said section eighteen (18) thence due east 121 rods, thence south about 168 rods, to the southwest corner of the east- half of the northwest quarter of the southeast quarter of said section eighteen (18), thence west 120 rods to the place of beginning, containing 126 acres more or less, of the value of about two thousand dollars.”

The following is amendment:

“And plaintiffs state that Ambrose P. Cooper and Nancy J. Cooper, his wife, defendants herein, brought an action in partition for the lands above described, filed their petition for partititon of the above described lands and .obtained an order and judgment of sale; during said proceeding or prior thereto the said defendant, Ambrose P. Cooper, with intent to cheat and defraud these plaintiffs and the heirs of J. O. Montgomery and defendant- Amanda Montgomery, procured from the said Amanda Montgomery a lease of said premises of and *365for her unassigiied dower interest therein, to wit: The one-third part thereof for and during her natural life, and onnressively and wrongfully went into and seized the possession against the will and protest of his co-heirs and tenants in common, and utterly refused to pay them or either of them any of the rents and profits of the remaining two-thirds of said premises and then caused said real estate to be advertised for sale under the judgment and order of sale and partition aforesaid and caused land' to be sold on the twenty-fourth day of November, 1896, at and before such sale by means of his wrongful possession, acts and doings in that behalf, wholly suppressed bidding for said premises and wholly prevented competition in the bidding at said sale, bid off the entire premises of the value of about two thousand dollars as aforesaid, at the wholly inadequate price and sum of four hundred dollars and paid out of this small sum and amount the sum of sixtv-seven dollars and five cents and assumed debts of the deceased J. C. Montgomery, claiming the same as a lien on said real estate described herein and the costs of said proceedings, and plaintiffs are advised and believe that whatever balance was and is due Malinda E. "Woodall, Rachel B. Williams, J.oel Cooper. Josie Cooper, Lillie Cooper, Artie Cooper, Albert Cooper and Roxie Cooper is still in the hands of J. N. Patterson, former sheriff of this county, and that he has made default on his sheriff’s bond and has wholly wasted and appropriated to his own use and has become wholly insolvent and said heirs for some cause unknown to plaintiffs have never received their share of the proceeds of the sale of said lands, that said sheriff received and misappropriated said sums of money in the latter part of the year 1896, and the right of action of said heirs against said J. N. Patterson on his official bond, plaintiffs are advised and believe, will be barred by the statute of limitations during the present year, and plaintiffs are advised and believe *366that said heirs as defendants herein may plead and show to. the court that they have received no sum or amount from the estate of J. O. Montgomery, deceased, and thereby wholly defeat plaintiffs’ recovery of and from them in this action by reason of the premises.” (The end of the amendment except the prayer appropriate to it).

“That plaintiffs were compelled to pay off and discharge the incumbrance so placed and given upon said lots ,3 and 4-, block 4, in Deal & Boughton’s addition to Dexter as aforesaid, to protect their property, and the liability created in and by the covenants of warranty made and given by the said E. E. Ladd the plaintiff to E. M. Ladd, as herein set out and stated, and against which the said J. O. Montgomery and defendant Amanda Montgomery expressly covenanted and warranted in their covenants in their said deed of warranty to the said E. F. Ladd, dated February 6, 1891, aforesaid, to wit: ‘The said grantors (J. C. and Amanda Montgomery) herein covenanting and they are lawfully seized of an indefeasible estate in fee in the premises herein conveyed; that they have good right to convey the same; that the said premises are free and clear from any incumbrances done or suffered by them or those under whom they claim, and that they will warrant and defend the title to the said premises unto the said party of the second part, and unto his heirs and assigns forever, against the lawful claims and demands of all persons whomsoever.’ That neither the said J. O. Montgomery and Amanda Montgomery nor the defendants nor any one of them or either of them, have paid off and discharged said incumbrance, nor defended the title to the premises, but on the contrary they and each of them have wholly failed, neglected and refused to pay off and discharge said incumbrance so placed on said lots 3 and 4 in block 4 as aforesaid, though often requested so to do; and fail, neglect and refuse to pay and repay plaintiffs’ said sum of two hundred and forty-one dollars and fifteen cents, nor costs and charges *367hereinbefore motioned, whereby plaintiffs have been compelled to employ counsel, to wit, O. L. Keaton, attorney at law, at the reasonable price and fee of fifty dollars, and to bring this action for reimbursement and for the recovery of said sum of money so paid out in this behalf.

“Wherefore plaintiffs pray judgment for said sum of $240.15, $4.50 and $50 attorney’s fees, together with their costs and charges in this behalf against the defendants and that said judgment be declared a charge against and upon said lands' received by the defendants by descent from the said J. C. Montgomery, deceased; that the sale of said lands under the judgment and order of partition may be set aside and that said lands may be sold by order of this court and that these plaintiffs may be fully reimbursed and indemnified in this behalf for all sums paid out and expended as herein stated and also to be laid out and expended. And that the court appoint a receiver to collect and receive from J. N. Patterson, former sheriff of this county, and his bondsmen the several amounts due from him the said J. N. Patterson to the said Malinda E. Woodall, Rachel B. Williams, Joel Cooper, Josie Cooper, Lillie Cooper, Artie Cooper, Albert Cooper and Roxie Cooper, and have and hold said sums of money to be paid over and delivered to these plaintiffs pro rata on their demand herein claimed and for all proper relief herein as to the court may seem meet according to equity, right and good conscience in the premises.”

“C. L. Keaton,

“Attorney for plaintiffs.”

*368To which the defendants on the 22d day of March, 1899, filed the following demurrer:

“E. M. Ladd et al., Plaintiffs

v.

Amanda Montgomery et al., Defendants.

Demurrer

. “Now come the above named defendants by attorney, and demur to plaintiffs amended petition filed in said cause and as grounds therefor state: (1) Said petition does not state facts sufficient to constitute a cause of action either at law or in equity. (2) Said petition discloses upon its face that no cause of action existed at the time of filing said suit, in favor of plaintiffs and against the defendants herein. (3) Said amended petition is at variance with and a departure from the alleged cause of action attempted to be stated in the original petition.

“Wherefore defendants ask that they be not required to answer or defend against said petition and that they be hence discharged with their costs.

“N. A. Mozley,

“Attorney for defendants.

“Which demurrer afterwards on the twentieth day of March, at said March term, the court sustained, and plaintiffs, electing to stand on their pleadings and declining to plead further, the court entered final judgment for the defendants.

“Plaintiffs filed their affidavit for appeal, which was allowed, to this court.”

The only question presented is, does'the foregoing petition state sufficient facts to' constitute a cause of action ? The suit is by the husband and heirs of the original grantee for alleged breach of a covenant against incumbrances, in that the land was subject- to a valid deed of trust when it was *369conveyed to the wife which was enforced against it after the wife by warranty deed, in which the husband joined, had conveyed it to third parties, the purchaser under the foreclosure sale having quitclaimed the land to. the plaintiff for the sum due on the deed of trust when it was foreclosed. The husband was not a party to the conveyance to his wife; that conveyance having been made February 5, 1891, operated under the statutes then in force to vest the wife with a statutory separate estate in the land, with a possibility of curtesy to the husband — children having been born — in the event of his survival of his wife. Before this estate could accrue in him the husband joined in his wife’s conveyance of the land. The husband not being a warrantee in the deed to his wife, assumed, notwithstanding, to join in the covenants contained in her deed of conveyance. This gave him no recourse on her grantor for breach of a covenant not made nor assigned to him. The wife or her representatives' might have been entitled to such a remedy over against her grantors or their heirs to the extent of assets descended,, provided the burden of the incumbrances had been discharged by the wife or out of her estate, for she was a convenantee in the original deed to her, but certainly no such right enured to plaintiff, to whom, no such covenants had been made or assigned, merely because he bought the land from the person who had purchased it at a-foreclosure sale under a’ deed of trust which was prior to the conveyance to his wife. Hence it is clear plaintiff’s petition shows no right of action in him individually.

Neither does it show any cause of action in the heirs of' his wife. Eor it distinctly appears from the petition that she did not remove the incumbrance, nor was it discharged out of the assets of her estate after her death. On the contrary, the petition expressly alleges that the husband himself purchased the property from the vendee at the foreclosure sale, giving as a consideration the amount due on the deed of trust *370at the date of its foreclosure, -and that he took the title to himself. It follows that there was no error in the judgment of the circuit court sustaining the foregoing demurrer, and it is affirmed.