The opinion of the court was delivered by
Brewer, J.:
're™Sarities; The record discloses manifold irregularities in the proceedings below, the result of which seems to have been that the plaintiff in error was deprived of his rights without his day in court. Many of these irregularities could have been corrected by motion in the district court.- At any rate we cannot consider them until they have been passed upon by that court.
[121]*121„ . 2. Granting continúances< [120]*120The petition was filed in the name of the executors of Jacob Ulrich deceased as plaintiffs, alleging that said Ulrich died siezed and possessed of certain tracts of land which he had obtained by deed from the heirs of John Hicks; that Gray and Miller had, prior to the date of that deed, obtained by false and fraudulent representations a conveyance from one of the heirs of her interest in said land, and praying that said conveyance be set aside and cancelled. To this petition a demurrer was filed by Gray upon two grounds, first, that the petition did not state facts sufficient to constitute a cause of action, and second, defect of parties plaintiff. At the March Term 1867 the heirs of Jacob Ulrich were by consent made parties plaintiff. The subsequent entries in the case are entitled with the names of the heirs as plaintiffs, omitting the executors. By consent the case was continued. At the subsequent term the case was again continued, but afterwards, during that term, and in the absence of plaintiff in error, the continuance was on application of counsel for the heirs- of Ulrich, set aside, the [121]*121case heard on the petition and proofs by them offered, and a decree entered setting aside the conveyance to Miller and Gray, and vesting the title to the land in the heirs. No notice was taken of the demurrer. The judgment recites that Gray has been duly served with summons, and is in default of answer. It appears then that the petition was filed in the names of the wrong parties plaintiff; that after the making of the new plaintiffs the case was improperly entitled; that Gray was not in default at the time of judgment, and that judgment against him was therefore irregularly entered. Ordinarily too, it is improper after a case has been continued to set Ji x aside the continuance and dispose of the case in the * absence of one party and on the application and in favor of the other. A record thus scarred is not comely to look upon. However, if these were the only errors we should probably be constrained to let the judgment stand, until at least application had been made to the court in which it was rendered to vacate it.
s. Deed — when eaged!naw1' not recorded. [122]*1224. After-acquired title of grantor. 5. Who may deea* aprior 5. Who may [121]*121We think a more fatal defect is in the petition; that upon its allegations neither the executors nor-the heirs were entitled to any relief. The petition shows that the land in controversy was sold and patented by the. United States to the heirs of John Hicks deceased; that Jane Hicks was one of those heirs; that on or about Dec. 21st, 1860, said Jane Hicks deeded her interest in the land to Miller and Gray; that on January 9th, 1862, she joined with the other heirs in a deed of the premises to Ulrich. Now, upon these facts it is plain that the deed to Ulrich, so far as Jane Hicks was concerned, carried nothing, as by her deed to Miller and Gray she had parted with all her interest. To avoid this necessary conclusion, and as furnishing grounds for relief, the petition further alleges that the deedMiller and Gray was imperfectly acknowle(%ed, was without consideration, was obtained by fa|ge a;QC| fraudulent representations, and was made before the issue of the patent. In regard to the first allegation, neither an imperfect acknowledgment, nor a total want of any acknowledgment affects the validity of a conveyance. An [122]*122simply to tbe proof of execution, not to tbe force of tbe instrument. In regard to tbe last, by tbe laws of 1859 wbicb were in force at tbe time, an after-acquired title of tbe grantor passes to tbe grantee to tbe extent of tbe interest purported to have been conveyed.
[123]*123and irreie[122]*122But it is claimed with great earnestness and ingenuity by counsel, that, as tbe petition, since tbe addition of tbe heirs as plaintiffs, contained an allegation that Jacob Ulrich died seized and possessed of tbe reality in question, that tbe plaintiffs were bis heirs at law, that tbe defendants claimed an interest in tbe premises by means of a deed set out in tbe petition, which deed showed that tbe interest of tbe defendants was adverse to that of tbe plaintiffs, and asking that tbe deed be set aside and tbe plaintiffs decreed to bave title in tbe premises, it was a good petition to quiet title, and tbe demurrer ought to bave [123]*123been overruled, and was properly disregarded. In other words, we may reject a large portion of the petition as surplusage and still find enough to make a good petition for some relief. Eedundant and irrelevant matter frequently appears in pleadings. JLlie code provides ior stniang it out on motion. So, if it may be stricken out on motion, it may be disregarded on demurrer. This is correct, except where the allegations proposed to be disregarded so far qualify and restrict the remainder of the petition that if true they show the plaintiff is not entitled to relief, then they may not be rejected as surplusage. The defendant is not called upon to make any defense when the plaintiff’s petition on its face shows that his claim for relief is unfounded. To illustrate: An action is brought on an account. The petition is complete, but does not allege when the account was created. A demurrer will be overruled. Buckner v. Clark, 1 Kas., 303. Suppose it alleges that the account was created five years before suit. A demurrer will be sustained. Zane v. Zane, 5 Kas., 134. The allegation of “time” cannot be rejected as surplusage. Its omission does not vitiate the pleading. Its presence qualifies and restricts the other averments, so that the whole petition shows that the claim is barred. This principle applies to the present ease. If there had been only a general allegation of title and possession, the petition might have been considered sufficient as one to quiet title; but inasmuch as it goes farther, and shows how both plaintiffs’ and defendants’ titles accrued, and upon that showing defendants’ title is the better, the demurrer should have been sustained, and there was error in proceeding to judgment, disregarding the demurrer.
r. Trusts ¡inci trustees.
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The opinion of the court was delivered by
Brewer, J.:
're™Sarities; The record discloses manifold irregularities in the proceedings below, the result of which seems to have been that the plaintiff in error was deprived of his rights without his day in court. Many of these irregularities could have been corrected by motion in the district court.- At any rate we cannot consider them until they have been passed upon by that court.
[121]*121„ . 2. Granting continúances< [120]*120The petition was filed in the name of the executors of Jacob Ulrich deceased as plaintiffs, alleging that said Ulrich died siezed and possessed of certain tracts of land which he had obtained by deed from the heirs of John Hicks; that Gray and Miller had, prior to the date of that deed, obtained by false and fraudulent representations a conveyance from one of the heirs of her interest in said land, and praying that said conveyance be set aside and cancelled. To this petition a demurrer was filed by Gray upon two grounds, first, that the petition did not state facts sufficient to constitute a cause of action, and second, defect of parties plaintiff. At the March Term 1867 the heirs of Jacob Ulrich were by consent made parties plaintiff. The subsequent entries in the case are entitled with the names of the heirs as plaintiffs, omitting the executors. By consent the case was continued. At the subsequent term the case was again continued, but afterwards, during that term, and in the absence of plaintiff in error, the continuance was on application of counsel for the heirs- of Ulrich, set aside, the [121]*121case heard on the petition and proofs by them offered, and a decree entered setting aside the conveyance to Miller and Gray, and vesting the title to the land in the heirs. No notice was taken of the demurrer. The judgment recites that Gray has been duly served with summons, and is in default of answer. It appears then that the petition was filed in the names of the wrong parties plaintiff; that after the making of the new plaintiffs the case was improperly entitled; that Gray was not in default at the time of judgment, and that judgment against him was therefore irregularly entered. Ordinarily too, it is improper after a case has been continued to set Ji x aside the continuance and dispose of the case in the * absence of one party and on the application and in favor of the other. A record thus scarred is not comely to look upon. However, if these were the only errors we should probably be constrained to let the judgment stand, until at least application had been made to the court in which it was rendered to vacate it.
s. Deed — when eaged!naw1' not recorded. [122]*1224. After-acquired title of grantor. 5. Who may deea* aprior 5. Who may [121]*121We think a more fatal defect is in the petition; that upon its allegations neither the executors nor-the heirs were entitled to any relief. The petition shows that the land in controversy was sold and patented by the. United States to the heirs of John Hicks deceased; that Jane Hicks was one of those heirs; that on or about Dec. 21st, 1860, said Jane Hicks deeded her interest in the land to Miller and Gray; that on January 9th, 1862, she joined with the other heirs in a deed of the premises to Ulrich. Now, upon these facts it is plain that the deed to Ulrich, so far as Jane Hicks was concerned, carried nothing, as by her deed to Miller and Gray she had parted with all her interest. To avoid this necessary conclusion, and as furnishing grounds for relief, the petition further alleges that the deedMiller and Gray was imperfectly acknowle(%ed, was without consideration, was obtained by fa|ge a;QC| fraudulent representations, and was made before the issue of the patent. In regard to the first allegation, neither an imperfect acknowledgment, nor a total want of any acknowledgment affects the validity of a conveyance. An [122]*122simply to tbe proof of execution, not to tbe force of tbe instrument. In regard to tbe last, by tbe laws of 1859 wbicb were in force at tbe time, an after-acquired title of tbe grantor passes to tbe grantee to tbe extent of tbe interest purported to have been conveyed.
[123]*123and irreie[122]*122But it is claimed with great earnestness and ingenuity by counsel, that, as tbe petition, since tbe addition of tbe heirs as plaintiffs, contained an allegation that Jacob Ulrich died seized and possessed of tbe reality in question, that tbe plaintiffs were bis heirs at law, that tbe defendants claimed an interest in tbe premises by means of a deed set out in tbe petition, which deed showed that tbe interest of tbe defendants was adverse to that of tbe plaintiffs, and asking that tbe deed be set aside and tbe plaintiffs decreed to bave title in tbe premises, it was a good petition to quiet title, and tbe demurrer ought to bave [123]*123been overruled, and was properly disregarded. In other words, we may reject a large portion of the petition as surplusage and still find enough to make a good petition for some relief. Eedundant and irrelevant matter frequently appears in pleadings. JLlie code provides ior stniang it out on motion. So, if it may be stricken out on motion, it may be disregarded on demurrer. This is correct, except where the allegations proposed to be disregarded so far qualify and restrict the remainder of the petition that if true they show the plaintiff is not entitled to relief, then they may not be rejected as surplusage. The defendant is not called upon to make any defense when the plaintiff’s petition on its face shows that his claim for relief is unfounded. To illustrate: An action is brought on an account. The petition is complete, but does not allege when the account was created. A demurrer will be overruled. Buckner v. Clark, 1 Kas., 303. Suppose it alleges that the account was created five years before suit. A demurrer will be sustained. Zane v. Zane, 5 Kas., 134. The allegation of “time” cannot be rejected as surplusage. Its omission does not vitiate the pleading. Its presence qualifies and restricts the other averments, so that the whole petition shows that the claim is barred. This principle applies to the present ease. If there had been only a general allegation of title and possession, the petition might have been considered sufficient as one to quiet title; but inasmuch as it goes farther, and shows how both plaintiffs’ and defendants’ titles accrued, and upon that showing defendants’ title is the better, the demurrer should have been sustained, and there was error in proceeding to judgment, disregarding the demurrer.
r. Trusts ¡inci trustees. Before passing from the case there is another point which requires notice. An attempt is made to show that Ulrich had the equitable title to the land before the deed to Gray and Miller, and that they took their conveyance with knowledge of this equity. Of course, if Ulrich had the full equitable title, and Jane Hicks acquired simply the naked legal title as trustee for him, and Gray and Miller obtained their conveyance with knowledge of this equity, [124]*124Ulrich, or his heirs can question the good faith of this conveyance. Or rather, it does not make any difference whether it was in good faith or not, for Gray and Miller would take only what Jane Hicks had, and would hold as trustees for the heirs. But the petition fails to show how and from whom Ulrich obtained the float, how it haj>pened that the land was sold and patented to the heirs of John Hicks, and what interest the grantees in the patent actually had. Until these facts are disclosed we cannot say that the petition shows such an equitable interest in Ulrich in the premises prior to the patent as will enable his heirs to question the good faith of a deed from Jane Hicks prior to her deed to Ulrich.
The judgment must be reversed, and the case remanded with instructions to proceed in accordance with the views expressed in this opinion. Miller and Hicks not complaining of the judgment below, of course it remains as against them unaffected by this reversal.
All the Justices concurring.
The provision referred to is § 4, oh. 41, Comp. Laws of 1862 as follows: u Sec. 4. Where a deed purports to convey a greater interest than the grantor was at the time possessed of, any after-acquired interest of such grantor, to the extent of that which the deed purports to convey, inures to the benefit of the grantee.”
This provision was somewhat changed in the revision of 1868. Section 5, ch. 22, Gen. Stat. 1868 is as follows: “Sec. 5. Where a grantor, by the terms of his deed, undertakes to convey to the grantee an indefeasible estate in fee simple absolute, and shall not, at the time of such conveyance, have the legal title to the estate sought to be conveyed,, but shall afterwards acquire it, the legal estate subsequently acquired by him shall immediately pass to the grantee; and such conveyance shall be as effective as though such legal estate had been in the grantor at the time of the conveyance.”