Appeal from the District Court of the Fifteenth District, City and County of San Francisco.

The plaintiff, a married woman, complained that her husband, one of the defendants, had sold to Madden, the other defendant, a lot of land which was of her separate estate, and prayed the injunction of the Court to prevent the consummation of the sale by execution of deed. The complaint was verified.

The husband entered no appearance to this complaint.

Madden answered that he had no information or belief as to whether the lot was of her separate estate or not, and for that reason denied that it was.

He further charged in his answer, by way of cross-complaint, that Kirstein, his co-defendant, by a written instrument, agreed to sell to him the lot in controversy, and execute a deed therefor, and prayed for the specific performance of this agreement. A copy of the instrument was set forth in the answer.

To the cross-complaint, the defendant, Kirstein, filed a general demurrer.

The plaintiff took default against the husband, and then moved for judgment against Madden in the pleadings. Pending the discussion of this motion, Madden moved, upon his affidavit, to amend his answer, by more fully denying that the property in dispute was part of the separate estate of the wife.

This motion was overruled, and judgment was granted to plaintiff upon the pleadings.

The demurrer of defendant, Kirstein, to Madden’s cross-complaint was sustained. Final judgment was afterwards signed, from which Madden appealed, and assigned the foregoing rulings of the Court as errors.

The instrument of writing set out in the cross-complaint was as follows:

“ I have this day sold to John Madden my lot on Natoma street, together with all the buildings and improvements thereon, and known by No. 32 (giving a full description), for the price of $6,500, in gold coin of the United States, and have received fifty ($50) dollars on account of the purchase of said lot. This sale is subject to the approval of the title. If the title be rejected as bad, I agree to refund said Madden the above mentioned fifty dollars; but if the title be approved, I agree to convey to said Madden, or his assigns, by a good and sufficient grant) bargain and sale deed, the above described premises, by said Madden paying me the balance of the purchase money, in gold coin of the United States. And I also allow said Madden fifteen days, from the date hereof, for the examination of the title of said premises, and have hereunto set my hand and seal, this 22d day of July, A. D. 1868.

“Chables Kibstein.” [seal.]

The affidavit and other papers on which Madden moved to amend his pleading, are not set out at length in the statement on appeal, but are therein referred to as being found in the transcript of the record of the proceedings before the District Judge, and are by him, in said transcript, duly certified and authenticated as the papers and affidavit upon which the motion was made. Kespondent’s counsel objected to the consideration of any of the documents that were not set out in the statement on appeal.