
    [No. 11419.
    In Bank.
    October 27, 1888.]
    GREGOR VON DRACHENFELS, Appellant, v. ALBERT DOOLITTLE et al., Respondents.
    Action to Quiet Title — Equitable Interest. — An action to quiet title cannot be maintained by the owner of an equitable interest as against the holder of the legal title.
    Complaint—Recovery must be on Cause op Action Stated in.—The plaintiff cannot have a judgment in direct contradiction of the allegations of his complaint.
    Id.—Amendment op Pleading—Reversal. — A judgment which is right upon the pleadings will not he reversed merely to allow the plaintiff to apply for leave to amend his complaint.
    Appeal from a judgment of the Superior Court of Del Norte County, from an order vacating a judgment, from an order overruling a demurrer to the answer, and from an order refusing a new trial.
    The facts are stated in the opinion.
    
      L. F. Cooper, and Sawyer & Burnett, for Appellant.
    
      J. D. H. Chamberlin, and R. C. Knox, for Respondents.
   Hayne, C.

This is an action under section 738 of the Code of Civil Procedure to determine an adverse claim; or, as is usually said, an action to quiet title. The complaint is in the usual form, averring in substance that the plaintiff is the owner of the premises (as against all persons except the United States), and that the defendants have some claim to the premises adverse to the plaintiff, which claim “is without any right whatever.” The facts are as follows: The owners of a mining claim upon public land conveyed it to the defendants, who were and are husband and wife. The consideration “was the sum of one thousand dollars payable in certain promissory notes,” which were executed by both of the defendants, but which were paid, when due, by the wife out of her separate property. The plaintiff recovered a judgment against the husband, and caused execution to be levied upon the mining claim, and became the purchaser at the sale without notice of the fact that the1 notes were paid with the separate funds of the wife, and in due course received the sheriff’s deed. After this the wife made application for a patent and paid what was required by the government, and in due time a patent was issued to her in her own name. The court below gave judgment for the defendants, and the plaintiff appeals.

The theory advanced for the appellant is, that the wife took the title in trust, and should be decreed, to convey to him. But we think this relief is entirely outside the case made by the complaint. The complaint alleges that the plaintiff is the owner, and that the defendants’ claim is without right. The judgment asked for would be, that the plaintiff is not the owner, and that the defendants’ claim is not without right, but on the contrary is the legal title, and should be conveyed to the plaintiff. It is obvious that the plaintiff cannot have a judgment in direct contradiction of the material allegations of his complaint. ■ If in any case an action to determine an adverse claim can be brought under our statute upon an equitable interest (which we doubt, see Frost v. Spitley, 121 U. S. 552), it cannot be brought against the holder of the legal title.

The judgment having been right will not be reversed merely to allow the plaintiff to apply for leave to amend his complaint. The other points made do not require special notice. We express no opinion as to the alleged equitable right of plaintiff.

We therefore advise that the judgment and orders appealed from be affirmed.

Foote, C., and Belcher, C. C., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

Rehearing denied.  