Fowler

This is an action to cancel a deed. Manuela R. Fowler, the real party in interest, although the action was brought in the name of her guardian, as plaintiff, is a surviving daughter of Juana E. Enriquez, the maker of the deed in question, now deceased. Defendant is a sur viving son of that deceased person. Decree was rendered for plaintiff and defendant appeals.

The complaint in the action is grounded upon undue influence and fraud, but appellant contends that it does not state facts sufficient to constitute a cause of action. It is true that plaintiff’s pleading sets up the facts going to substantiate the claim of fraud and undue influence in somewhat general terms. Still, we are not prepared to assert that they are alleged in such a manner as to render the complaint insufficient even if the question had been presented and argued on demurrer in the trial court. [1] Certainly the pleading is far from barren of averment on the question, and when a complaint is not totally devoid of allegation upon a particular point and the objection that it is insufficient in that regard is first made on appeal, the trial having been conducted by the objecting party upon the theory that it was…