Heinlen

It is urged by the defendants that the action is ejectment and that they were entitled to a trial by jury. But the point is not well taken. The plaintiff deraigns his title through the power of attorney to Camarena, a copy of which is annexed to and made a part of the complaint. This instrument was not under seal, and was therefore insufficient to authorize á conveyance' of the legal title. If the pleader in the complaint put a false construction on the power of attorney, this will be rejected as surplusage, as the error appears on the face of the instrument which forms a part of the complaint: Stoddard v. Treadwell, 26 Cal. 302 . But taking the whole complaint together, we do not understand it as asserting that the legal title was in the plaintiff. On the contrary, its obvious purpose was to have the defendants declared to be trustees, holding the legal title for the use of the plaintiff, and to compel a conveyance, with a delivery of the possession and an accounting for the rents and profits. The cause of action stated in the complaint is one of purely equitable cognizance.

Nor did the court err in admitting in evidence the two depositions of Melone. The evidence was material…