Varni

This is an action in partition. It is alleged in the complaint that Stefano Varni and the defendant Maria Varni are husband and wife, and that with money earned by him during their marriage she purchased an estate of inheritance to the extent of an undivided one-half interest in the land described in the complaint, and caused the legal title thereto to be conveyed to her, and that the same now stands of record in her name; that she is in possession thereof as trustee for him, and he is the equitable owner thereof; that Antonio Devoto is the owner and holder of the other undivided one-half interest, and that plaintiff and the defendant Devoto are the only persons having any interest therein.

Both the defendants demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. Based upon these. demurrers a judgment of dismissal was entered, and from that judgment plaintiff prosecutes this appeal.

Plaintiff suggests that if, as an abstract legal proposition he is entitled to maintain this action, he should have been given an opportunity to amend the complaint. That is true. But if he desired to amend it he should have applied to the…