Banbury

This action is brought by respondent, who was the vendor in a contract for the sale of certain real estate, to enforce specific performance of the contract on the part of the appellant, who was the vendee.

There is an appeal by defendant from the judgment. A copy of the contract is attached to the complaint and made part of it. The contract shows that the plaintiff was a married woman and the wife of T. Banbury at the time she entered into it. There is no certificate of acknowledgment attached thereto, and no express allegation in the complaint that it -was acknowledged.

For grounds of reversal appellant insists that the complaint does not state facts sufficient to constitute a cause of action. The fact that appellant’s demurrer was overruled by consent does not preclude him from attacking the judgment in this court upon the ground that it rests upon a complaint inherently defective, and it is upon the sufficiency of that complaint that the merits of this appeal must be determined. Section 1093 of the Civil Code provides: “No estate in the real property of a married woman passes by any grant purporting to be executed or acknowledged by her, unless the grant or instrument is…