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locators, the steps necessary to constitute and maintain the location, etc.271

8 3165n. The same action to annul homestead. A complaint, in an action to annul an order setting apart a homestead to the widow of a deceased person out of his estate, which alleges that the property set apart was the separate property of the deceased, and that the widow, defendant in the action, knowing that fact, and for the purpose of deceiving the court, falsely alleged and falsely swore that the property was community property, whereby the court was misled and deceived, and induced to make the order, does not state facts sufficient to constitute a cause of action.?

272

31650. The same action against garnishee. Allegations in à complaint against a garnishee, in an action by a judgment creditor, authorized in proceedings supplementary to execution against the judgment debtor, that the assignor of the plaintiff “ recovered a judgment” in the Superior Court, “which judgment was duly entered,” etc., and that the order authorizing the suit was “duly made,” are sufficient as against a general demurrer.273

3165p. The same - specific performance. The absence of a certificate of acknowledgment upon a copy of a contract for the conveyance of land, attached to a complaint for the specific performance thereof as an exhibit, is not sufficient to show that the contract was not executed and acknowledged according to law, and where the complaint alleges that the plaintiff entered into a contract with the defendant, whereby he agreed to sell to the defendant, who agreed to purchase the land, such allegations will control, and imply the execution and acknowledgment of the contract according to law, for the purpose of supporting a judgment for specific performance of the contract. 274

$ 3165q. The same averments, probate of will, ownership. An averment in a pleading that a will was “probated by the

271 Anthony v. Jillson, 83 Cal. 206; compare Milligan v. Savery, 6 Mont. 129.

272 Fealey v. Fealey, 104 Cal. 354; 43 Am. St. Rep. 111; compare Dunlap v. Steere, 92 Cal. 344; 27 Am. St. Rep. 143.

273 High v. Bank of Commerce, 95 Cal. 386. 274 Banbury v. Arnold, 91 Cal. 606.

Court. 275

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Superior Court," is equivalent to an averment that the will was admitted to probate by the judgment of the Superior

And an averment that a given person was his lifetime” the owner of a piece of land, is equivalent to an averment that he was the owner continuously throughout his lifetime.276

$ 3165r. The same dismissal for want of parties. Under Oregon procedure, if it appears from the record that the real merits of the suit can not be determined without essentially affecting the rights of persons in the subject matter, who are not parties, and whose names nowhere appear in the record, the appellate court will refuse to examine the facts, but will dismiss the complaint for want of parties.277

$ 3165s. The same - allegation negativing presumption of payment. In an action by a devisee to vacate a judgment for costs rendered against his testator, and an execution sale thereunder, an allegation of the complaint that neither the plaintiff nor his testator had any knowledge, notice, information, or belief that any judgment for costs had been entered, or that any cost bill had been filed, or that any execution had been issued, or of any sale thereunder, or of any certificate or deed by the sheriff, is sufficient to negative any presumption that the sheriff had paid or tendered to the plaintiff's testator the excess of the proceeds arising from the execution sale.278 A judgment upon which no execution has been issued for twenty years, in the absence of explanatory facts or evidence, is presumed to be paid. And in order to avoid objection by demurrer, the plaintiff must allege in his complaint the facts and circumstances on which he relies to rebut such presumption.279

$ 3165t. The same — mining-claim contest. An allegation of citizenship, or its equivalent, is necessary to constitute a good complaint in a proceeding to determine adverse mining claims preliminary to the issuance of a patent therefor.280 But, in an ordinary civil action for injuries to a mining claim, the plaintiff need not in the first instance allege his citizenship and compliance with the act of Congress for acquiring title to such claim, but he may make general averment of his title or possession, which is sufficient in an action against a wrongdoer without right or title.281 Where, in a suit for the possession of a mining claim, the petition alleges that the plaintiff is the owner and in possession of the property, claiming the right thereto, and the defendant's answer denies the same, any insufficiency of the allegations as to possession is waived.282

275 Riddell v. Harrell, 71 Cal. 254. 276 Id. 277 Beasley v. Shively, 20 Oreg. 508. 278 Riddell v. Harrell, 71 Cal. 254. Insufficient complaint in action to set aside judicial sale. See Russell v. Pew, 12 Mont. 509; Hudepohl v. Mining Co., 94 Cal. 588.

279 Beekman v. Hamlin, 20 Oreg. 352.

280 Keeler v. Trueman. 15 Col. 143; Thomas v. Chisholm, 13 id. 105; O'Reilly v. Campbell, 116 U. S. 418; and see $ 3165m, ante.

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§ 3165u. The same -action to contest right to purchase state lands. A complaint in this action must allege the facts, so that the court may see whether the application was made in due form. Each party is an actor, and must allege and prove all the facts upon which he relies as showing his right to become a purchaser, and the steps he has taken to avail himself of and secure his right to make the purchase.283 But this does not change the rule of Code pleading that material allegations which are not denied must be taken as true.284 An allegation that the plaintiff filed his “affidavit and application in due form is the statement of a mere conclusion, and is insufficient. The plaintiff in such action, not having shown a right to purchase in himself, is not entitled to recover because of the insufficiency of the allegations or proof of the defendant.2 The burden rests upon either party to establish his own right.287

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§ 3165v. The same - injunction - inte erence with franchise. The owner of an incorporeal hereditament, although he may have no estate in the land, nevertheless shows a sufficient case in equity to sustain an injunction, if his complaint avers possession and a right to the possession of a tollroad for the pur

281 McFeters v. Pierson, 15 Col. 201; 22 Am. St. Rep. 388. 282 Bushnell v. Smelting Co., 12 Col. 247. 283 Cushing v. Keslar, 68 Cal. 473; and see $ 31651, ante. 284 Prentice v. Miller, 82 Cal. 570. 288 McEntee v. Cook, 76 Cal. 187. 286 Manley v. Cunningham, 72 Cal. 236. 287 Lane v. Pfernder, 56 Cal. 122; see further, as to sufficiency of complaint in this action, McKenzie v. Brandon, 71 id. 209; Garfield v. Wilson, 74 1d. 175; Reese v. Thorburn, 78 id. 116; Jacobs v. Walker, 76 id. 175; McFaul v. Pfankuch, 98 id. 400; Riddell v. Mullan, 77 id. 577.

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pose of collecting tolls thereon, and that the county through its board of supervisors interferes with and obstructs the free use and enjoyment of his property by depriving him of his tolls.288

§ 3165w. The same will contest. In a contest arising upon the probate of a will, the contestants are plaintiffs in the matter, and it devolves upon them to allege all facts necessary to sustain a claim that the will was not properly signed and witnessed, and a statement in the language of the statute, or of the evidence of the facts, is not sufficient.289 An allegation that the mind of the decedent was weak, debilitated, and deranged to such an extent as to incapacitate him from making or undertaking a will or codicil tenders an issue as to “the competency of the decedent to make a last will and testament.” 290 But when the grounds of contest embrace conclusions of law, as menace, duress, or the like, the facts relied upon to show such conclusions must be pleaded.201 It is not essential that the petition for the probate of a will should state whether it is an olographic or other species of will, nor does any defect of form or in the statement of the jurisdictional facts actually existing invalidate the probate.292 A petition for the probate of a will alleged to have been fraudulently destroyed during the lifetime of the testator, must specifically state the facts and circumstances constituting the fraud.293 An allegation in a petition to establish and prove a lost will, stating that "said deceased, at the time of his death, left a will which your petitioner alleges to be the last will and testament of said deceased,” is equivalent to alleging that the will was in existence at the time of the death of the testator, as the statute in such cases requires.204

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§ 3165x. The same pertaining to trusts. The rule is well settled that, in order to enforce a constructive or resulting trust, the facts from which such trust is claimed to arise must be clearly alleged, and proved with certainty.296 Where, in pur

288 Welch v. County of Plumas, 80 Cal. 338. 289 Estate of Burrell, 77 Cal. 479; Estate of Dalrymple, 67 id. 444. 290 Estate of Kohler, 79 Cal. 313. 291 Estate of Gharky, 57 Cal. 274. 292 Estate of Learned, 70 Cal. 140. 293 Estate of Kidder, 66 Cal. 487.

294 In re Harris' Estate, 10 Wash, St. 555. Sufficient averment of probate of will. See $ 31659, ante.

295 First Nat. Bank v. Campbell, 2 Col. App. 271; Woodside v. Hewell, 109 Cal. 481; McClure v. La Plata County, 19 Col. 122; Phillips v. Overfield, 100 Mo. 466. Complaint stating facts held to be sufficient to create a resulting trust. See Muller v. Buyck, 12 Mont. 354.

suance of an agreement to locate and develop a mining claim for the joint benefit of the parties, one of the parties locates the claim in his own name, he holds the legal title to the interest of the other in trust for him.296 And in an action to enforce such trust, and to compel a conveyance of his interest in the claim, the plaintiff need not allege citizenship in his complaint; and an allegation that “the plaintiff has performed all and singular his agreements and covenants with the defendant,” is sufficient as an averment of the performance of the conditions on his part to be performed.297 If a patent to state lands is void, no constructive trust can be enforced therein by a third person alleging himself to have been entitled thereto. And if the patent is valid, no constructive trust can be enforced for fraud in procuring the patent, unless the claimant affirmatively alleges and proves that he possessed the necessary qualifications entitling him to a patent.208 An administrator has no capacity to bring an action to enforce a trust in lands conveyed by the decedent in his lifetime, and to compel a conveyance of the legal title.299

§ 3165y. Defects in complaint cured by answer. A pleading defective by reason of the omission of some material allegation, may be aided by the pleading of the adverse party. The rule is that, if the omitted allegation be supplied by the adverse pleading, it is the same as if it were inserted in the party's own pleading 300 Thus, if a complaint fails to set forth material facts so that no cause of action is stated, but the answer avers such facts, the omission in the complaint becomes immaterial,

296 Settembre v. Putnam, 30 Cal. 490; Welland v. Huber, 8 Nev. 203.

297 Moritz v. Lavelle, 77 Cal. 10; see Hanson v. Fricker, 79 id. 283. Complaint in an action to enforce a trust against the holder of a legal title under a confirmed and patented Mexican grant. See De Toro v. Robinson, 91 Cal. 371.

298 Peabody v. Prince, 78 Cal. 511.

299 Field v. Audrada, 106 Cal. 107. Requisites of a bill to impeach a conveyance by a trustee. See De Mares v. Gilpin, 15 Col. 76; see, as to actions involving matters of trust, 88 2603 et seq., ante. 300 Ferrera v. Parke, 19 Oreg. 141.

Vol. II — 69

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