without right or title.381 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.332

333

§ 357. 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. But this does not change the rule of code pleading that material allegations which are not denied must be taken as true.334 An allegation that the plaintiff filed his "affidavit and application in due form" is the statement of a mere conclusion, and is insufficient. 335 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.336 The burden rests upon either party to establish his own right.3

337

§ 358. The same-Injunction-Interference 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 purpose 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.338

831 McFeters v. Pierson, 15 Colo. 201, 22 Am. St. Rep. 388, 24 Pac. 1076.

332 Bushnell v. Crooke etc. Smelting Co., 12 Colo. 247, 21 Pac. 931.

333 Cushing v. Keslar, 68 Cal. 473, 9 Pac. 659.

334 Prentice v. Miller, 82 Cal. 570, 23 Pac. 189.

335 McEntee v. Cook, 76 Cal. 187, 18 Pac. 258.

336 Manley v. Cunningham, 72 Cal. 236, 13 Pac. 622.

837 Lane v. Pferner, 56 Cal. 122. See further, as to sufficiency of complaint in this action, McKenzie v. Brandon, 71 Cal. 209, 12 Pac. 428; Garfield v. Wilson, 74 Cal. 175, 15 Pac. 620; Reese v. Thorburn, 78 Cal. 116, 20 Pac. 131; Jacobs v. Walker, 76 Cal. 175, 18 Pac. 129; McFaul v. Pfankuch, 98 Cal. 400, 33 Pac. 397; Riddell v. Mullan, 77 Cal. 577, 20 Pac. 91.

338 Welch v. County of Plumas, 80 Cal. 338, 22 Pac. 254.

359. 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.339 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." 840 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.341 It is not essential that the petition for the probate of a will should state whether it is a holographic or other species of will, nor does any defect of form. in the statement of the jurisdictional facts actually existing, invalidate the probate.342 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.3 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.344

343

§ 360. 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.345 Where, in pursuance of an agreement to locate and develop a mining claim for the joint benefit of the parties, one of the parties locates

339 Estate of Burrell, 77 Cal. 479, 19 Pac. 880; Estate of Dalrymple, 67 Cal. 444, 7 Pac. 906.

840 Estate of Kohler, 79 Cal. 313, 21 Pac. 758.

341 Estate of Gharky, 57 Cal. 274. 342 Estate of Learned, 70 Cal. 140, 11 Pac. 587.

343 Estate of Kidder, 66 Cal. 487, 6 Pac. 326.

344 In re Harris' Estate, 10 Wash. 555, 39 Pac. 148.

845 First Nat. Bank v. Campbell, 2 Colo. App. 271, 30 Pac. 357; Woodside v. Hewel, 109 Cal. 481, 42 Pac. 152; McClure v. Board of Commrs. of La Plata County, 19 Colo. 122, 34 Pac. 763; Phillips v. Overfield, 100 Mo. 466, 13 S. W. 705. Complaint stating facts held to be sufficient to create a resulting trust. See Muller v. Buyck, 12 Mont. 354, 30 Pac. 386.

the claim in his own name, he holds the legal title to the interest of the other in trust for him.346 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.347 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.348 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.349

§ 361. 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. 350 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, and the defect therein is cured by the answer.351 So the omission of a material fact in a complaint is cured by its averment

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

347 Moritz v. Lavelle, 77 Cal. 10, 11 Am. St. Rep. 229, 18 Pac. 803. See Hanson v. Fricker, 79 Cal. 283, 21 Pac. 751. 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, 27 Pac. 671. 348 Peabody v. Prince, 78 Cal. 511, 21 Pac. 123.

349 Field v. Andrada, 106 Cal. 107, 39 Pac. 323. Requisites of a bill to impeach a conveyance by a trustee. See De Mares v. Gilpin, 15 Colo. 76, 24 F'ac. 568.

351 Shively V. Semi-Tropic etc. Water Co., 99 Cal. 259, 33 Pac. 848; Burns v. Cushing, 96 Cal. 669, 31 Pac. 1124; Schenck v. Hartford Fire Ins. Co., 71 Cal. 28, 11 Pac. 807; Moffat v. Greenwalt, 90 Cal. 368, 27 Pac. 296; Robinson etc. Co. v. Johnson, 13 Colo. 258, 22 Pac. 459, 5 L. R. A. 769; Limberg v. Higenbotham, 11 Colo. 156, 17 Pac. 481; Drake v. Sworts, 24 Or. 198, 33 Pac. 563; Hamilton v. Great Falls etc. Ry. Co., 17 Mont. 334, 42 Pac. 860, 43 Pac. 713.

in a cross-complaint of the defendant, and the admission of the averment in the answer to the cross-complaint. And the fact that there is a demurrer to the complaint does not take the case out of the rule of express aider.352 So, also, the defect in an affirmative defense is cured by the introduction without objection of testimony in support thereof.353 But admissions made in the statement of a separate affirmative defense are not to be taken as facts upon a controverted question otherwise at issue in the pleadings by appropriate allegation and denial.354

§ 362. Standing on demurrer.-Where a demurrer to an answer is sustained, and defendant stands on his exception thereto, judgment being rendered against him, he cannot after the term of court have the judgment set aside on motion and get permission to amend his answer.355

FORMS OF DEMURRERS.

§ 363. Demurrer to some of several causes of action, and to the whole complaint.

[TITLE.]'

Form No. 66.

I. The defendant demurs to the first cause of action stated in the complaint in this cause upon the following grounds:

1. That said first alleged cause of action does not state facts sufficient to constitute a cause of action.

2. That said first alleged cause of action is ambiguous in this [state particularly wherein it is ambiguous].

II. The defendant also demurs to the third cause of action in said complaint contained, upon the ground that [state any ground of demurrer applicable to the cause of action, or as many grounds as there may be].

III. The defendant also demurs to the whole complaint in this cause upon the grounds following:

352 Cohen v. Knox, 90 Cal. 266, 27 Pac. 215, 13 L. R. A. 711. Compare Robinson etc. Co. v. Johnson, 13 Colo. 258, 22 Pac. 459, 5 L. R. A. 769.

P. P. F. Vol. I-15

353 Reynolds v. Dickson, 48 Wash 407, 93 Pac. 910.

354 Hayes v. Williams, 17 Colo. 465, 30 Pac. 352.

355 Davidson v. Hughes, 79 Kan. 247, 91 Pac. 913.

1. That several causes of action have been improperly united therein. [State wherein the joinder is improper.]

2. [State any other ground of demurrer applicable to the whole complaint.]

364. Demurrer based on statute of limitations.

[TITLE.]

Form No. 67.

The defendant [or if only part of the defendants demur: the defendants, naming the demurrants, demur] demurs to the complaint herein [or, to the first, or second, or other, cause of action stated in the complaint herein] on the ground that it appears upon the face of said complaint that the action was not commenced within the time limited by law, to-wit, within the time limited by section . . . of the Code of Civil Procedure.

§ 365. On the ground of want of jurisdiction.

[TITLE.]

Form No. 68.

The defendant demurs to the complaint filed herein, and for cause of demurrer alleges:

I. That the court has no jurisdiction of the person of the defendant [or of the subject-matter of the action-state why].

§ 366. On the ground of want of capacity to sue.

[TITLE.]

Form No. 69.

The defendant demurs to the complaint filed herein, and for cause of demurrer alleges:

That the plaintiff has not legal capacity to sue [state reason why].

§ 367. On the ground of another action pending.

[TITLE]

Form No. 70.

The defendant demurs to the complaint filed in this action, and for ground of demurrer alleges:

That it appears upon the face of said complaint that there is another action pending between the same parties for the same

cause.