Heinlen

The defendants contend that on the face of the complaint this is not an action for specific performance, but an action at law on an alleged legal title for the recovery of the land. We are of opinion, however, that though the complaint is obnox-. ious to criticism, it sufficiently appears on the face of it that the action is for the specific performance of a contract for the conveyance of land. There was no special demurrer on the ground of ambiguity.

Both parties claim under the six heirs of Arguello, who are conceded to have been the owners in fee, and the title of the plaintiff, as stated in the complaint, is deraigned through, 1st, a power of attorney not under seal, from the six Arguellos to Camarena, with a power of substitution; 2nd, a substitution by Camarena of Splivalo, under the power; 3rd, a deed, absolute •in form, from the six Arguellos by Splivalo as attorney in fact, to Aguayo, for the consideration of five thousand dollars; 4th, a subsequent deed from Aguayo to the plaintiff for the consideration of five thousand dollars, which the complaint avers *338 was paid by the plaintiff to Aguayo at the time of the execution of the deed. It is contended by the defendants…

I would readily concur in several of the propositions discussed in the foregoing opinion, if, in my judgment, they were presented by the record; but as I view the case, the contract which is specifically enforced is not pleaded, and its introduction in evidence was objected to by the defendants. I therefore dissent from the opinion and judgment.

Wallace, C. J., being disqualified, did not participate in the decision.