
    John H. Stringfellow v. L. A. Alderson and others.
    July Term, 1873.
    Pleading: Answer: Ejectment: Demurrer: Motion. An answer in an ejectment suit alleged a contract of sale by plaintiff, and a surrender of possession thereunder, but did not recite the contract, nor disclose the terms of sale, nor allege performance. A demurrer to such defense was overruled. Held, that there was no error in such ruling, and that the defects in such an answer should be reached by motion, and not by demurrer.
    Error from Atchison district court.
    The case is stated in the opinion.
    
      F. D. Mills, for plaintiff in error.
    The court erred in sustaining the demurrer. The fifth defense states the mere naked fact that “ Atkinson had a contract of sale for the real estate sought to be recovered by plaintiff, and that defendants have the right of possession by the consent of Atkinson in his life-time, and the consent of his heirs since his decease.” The defendants do not allege what the contract was, nor that Atkinson had complied with its conditions, nor *make any showing that Atkinson was or is entitled to a conveyance. There are no averments upon which the court can render an intelligent judgment, or afford them any relief.
    
      All the elements going to constitute an equitable defense as against the legal title, must be distinctly alleged and proved. People v. Weis, 19 Cal. 294; Stone v. Elkins, 24 Cal. 127.
   Brewer J.

Plaintiff brought bis action of ejectment against defendants, filing therein a statutory petition. Defendants answered, setting up several defenses. A demurrer to the fifth defense was overruled, and this is the error complained of. This fifth defense alleges substantially a contract of sale from plaintiff to one R. L. Atkinson, an entry into possession by said Atkinson, with the consent of plaintiff, and a possession by defendants by and with tbe consent of Atkinson in bis life-time, and of his heirs since bis decease. Tbe contract of sale is not copied, nor its terms disclosed, but is referred to as on the records in the registry of deeds. There is no allegation of performance by Atkinson of the conditions of the sale. There can be no question but that this defense is very defective; but we think these defects should have been reached by motion, and not by demurrer. It alleges a contract of sale, coupled with a surrender of possession. The contract not being disclosed, the surrender of possession will be presumed to have been in accordance with its terms. This would show a right of possession in Atkinson, and there is nothing to indicate that that right of possession has ever terminated.

The judgment of the district court will be affirmed.

(All the justices concurring.)  