De Flores v. Santa Cruz
Before: Works
Synopsis
Cancellation of Deed — Duress — Pleading — Execution of Deed — Appeal — Objection for First Time. — In an action to set aside a deed on the ground that it had been procured by duress, where it appears that a demurrer to the complaint was overruled by consent, and that an allegation in the complaint as to the execution of the deed is made certain by the answer, which alleges its execution and denies the duress, it cannot be objected for the first time on appeal that the complaint does not sufficiently allege that the deed was executed.
Works, J. This is an action to set aside a deed on the ground that it had been procured by duress. There was a judgment for the plaintiff. A motion for a new trial was overruled, and the defendant appeals. It is contended that the complaint is insufficient because it does not directly allege the execution of the deed by the plaintiff. We think the complaint is sufficient in this respect, but if it were not the record shows that the demurrer to the complaint was overruled by consent, and the defect in the complaint is' cured by the answer, which alleges the execution of the deed, but denies that it was procured by duress. As there was an allegation of such a conveyance in the complaint, which is made certain by the answer, the appellant cannot be allowed to attack the complaint in this court, for the first time, on this ground. The findings support the judgment, and they are sustained by the evidence.
The judgment and order are affirmed.
Fox, J., and Paterson, J., concurred.
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