OPINION OP THE COURT.
This is аn appeal by the Guadalupe County Board of Education, a corporation, from adjudgment rendered in the district court for Guadalupe county, dismissing its complaint against thе appellee.
A proper understanding of the case makes it necessary to set forth in detail portions of the pleadings. The complaint, after alleging the chаracter of the appellant and the residence of the appellee, proceeded as follow's:
“That the plaintiff herein * * * is the owner in fee simple of the following described and numbered lands and real estate, to wit: [Then follows description of land, constituting- about one acre.]
“That on or about the-day of September, A D. 1908, -had a valid filing on, and was in possession of, under the laws of the United States of America, the following described * * * land. [Then follow description of a tract of land embracing the one аcre of which appellant claimed to be the owner.] That while he had such filing, and while he was in possession of such lands, * * * and for the consideration hereinafter named, he delivered to school district No. 26, * * * the land and real estate (described above and constituting one acre) upon the consideration that said school district No. 26 would build thereon a substantial schoolhouse and maintain a school therein, * * * and that thereafter, when he received a patent for said lands from the United States of America, hе would deed [the said acre of land] to school district No. 26. * » *
“(5) That ever since the-day of September, A. D. 1908, school district No. 26 * * ° has had the possession of and have [has] constructed upon and maintained a substantial school building thereon, and have [has] had a school therein, in accordance with the laws of the state of New Mexico.
“(6) That therеafter, on or about the -- day of September, A. D. 1910, Joseph N. O’Bannon, with full knowledge of the contract * * * aforesaid, and with full knowledge of the possession and occupatiоn (pf said premises by said school district, * * * entered and Hied upon said described * * * lands, and that thereafter, on the 27th day of November, 1914, he received the patent of the United Stаtes of America for said lands. * * *
"(7) That the said Joseph N. O’Bannon has refused and still refuses to deed the said described * » * lands to school district No. 26, or to the plaintiff herein, although he fully аcquiesced in the contract * * * aforesaid and fully ratified the same, although due demand has been made for said deed.
"Wherefore plaintiff prays for judgment that the defendant be required to convey to the plaintiff, by a good and sufficient deed of conveyance, said described * * * land, pursuant to the contract and agreement aforesаid. * * *”
To the complaint the appellee filed a demurrer upon the following grounds: (1) That the complaint did not state facts sufficient to constitute a cause of action; (2) that the complaint does not allege that defendant made an agreement or memorandum in writing by which he bound himself to convey said property, nor is there any allegatiоn in the complaint showing that any consideration was received by defendant; (3) that the complaint does not allege that the plaintiff has paid or offered to pay dеfendant any money or thing of value as full or part payment for said land; (4) that the deed of the defendant would be insufficient to convey said property, in that defendant is a married man, and therefore there is a defect of parties defendant; and (5) that plaintiff alleges it is the owner in fee simple of said lands but fails to show title thereto. The demurrer was sustаined, the appellant stood upon the complaint, and judgment of dismissal was rendered.
The pleadings in this case illustrate the difficulty which frequently occurs under the code system of pleading, in determining the nature of the cause of action stated. The prayer of the complaint, which is really no part of the pleading (Beals v. Ares, 25 N. M. 459,
The complaint, reduced to its lowest terms, alleged simply that X, an unknown or unnamed person, under an entry of lands under the laws of the United States, delivered the prоperty to the appellant and verbally agreed with the school district that when he (became possessed of the legal title to the land in dispute he would convey the sаme to the appellant, in the event the appellant would erect a school building thereon and continue to maintain a school therein; that the appellаnt performed the conditions,of said agreement; that' X, the unknown party, was succeeded as an entryman of said land by the appellee, who “acquiesced” in and “ratifiеd” the said contract, with full knowledge of the possession and occupation of the proj>erty by the appellant and received patent for said land subsequent therеto, but refused to perform the covenants of said agreement.
The appеllant argues this case solely upon the premise that the acts of X., the unknown and unnamed entry-man, amounted to a common-law dedication of the property in question аnd the vesting of title thereto in the public, the school district, or the county board of education. Appellant also argues that the appellee'acquired the land frоm the United States by false and fraudulent representations, and hence a constructive trust arose in favor of the appellant. There is no allegation in the pleadings tо support any such theory. If it were true that a common-law dedication was made of this property by X., appellant’s remedy would have been a suit to quiet title, not a suit for specific performance. In conclusion, we note that appellee was a married man, and consequently could not convey the title to the premises without the joinder of his wife. No such question is properly here, because the facts set up as to marriage clo not appeal* upon the face of the complaint, and the objection should have been taken by way of answer.
The judgment of the trial court will therefore be af-ármed; and it is so ordered.