Knight alone, the said Rasmussen at that time not knowing of the change in the grantee in his deed, and not having discovered the said frauds of said defendants, and on the twentyninth day of March, 1881, a decree of said court was duly made and entered, directing the sale of the above-described property, and the same was duly sold to the said plaintiff Rasmussen on the twenty-third day of April, 1881, by the United States marshal for the territory of Utah, for the sum of four hundred and thirteen dollars and fifty cents; that the said property has never been redeemed or the said decree paid. The said United States marshal executed a deed conveying all of the interests of said James McKnight to Rasmussen, in pursuance of the statute in such case made and provided, six months after the sale, April 25, 1881. That the said Mary Ann McKnight received the said conveyance without any consideration moving from her; that she is a party to and cognizant of the said frauds herein alleged; that the reception of the said deed by her in her name was a fraud upon said plaintiff Rasmussen. "Plaintiff's pray judgment that the said deed to Mary Ann McKnight may be decreed to be a fraud upon the rights of the said plaintiff Rasmussen, and that the said mortgage from the said James McKnight be so corrected as to include all the interests conveyed in said deed to Mary Ann McKnight or any other person, and that said plaintiffs may be decreed to be the owners of said property, and for such other relief as may be proper in the premises, and for costs of suit. "ARTHUR BROWN, "R. B. TRIPP, "Attorneys for plaintiffs." This complaint was duly verified. To this complaint the defendants filed a demurrer as follows: "Come now the defendants and demur to the plaintiffs' amended complaint, and for causes of demurrer allege: "1. That there is a misjoinder of parties plaintiff and defendant in this: 1. That said plaintiff Brown is not a proper party to the action, because no profert has been made of his interest except the recital in said complaint; which shows that his interest, if any, was for the mere purpose of litigation and without consideration, and that he was not a party to the original transaction. 2. That the said Mary A. McKnight is not a proper party defendant because she was not a party to the original transaction, nor does the complaint show that she is the owner of or in possession of the land in dispute. "2. That the complaint does not show that plaintiff Rasmussen's claim was fully paid by former suit in foreclosure and sale, nor that plaintiffs have been refused possession of said land by either of the defendants, nor that said plaintiff's have made any effort to obtain possession of said land by writ of possession or otherwise, nor that plaintiffs have ever demanded possession of the same. "3. That said complaint does not state facts sufficient to constitute a cause of action. "JAMES MCKNIGHT, "Attorney for defendant." The complaint sets forth that the plaintiff Rasmussen was at the time therein alleged the owner of and in possession of certain real estate and right of way therein described, and a contract between Rasmussen and James McKnight of sale, but whether of the described land and right of way or for the right of way alone is quite uncertain, but I will assume it was for both. The complaint also alleges that James McKnight wrote a deed and mortgage, and read them "as in pursuance of the contract"-a deed to McKnight and a mortgage back to Rasmussen for the unpaid balance of the purchase money." Down to this time in the history of the transaction, as set forth in the complaint, there is no allegation that either the deed and mortgage was not in all respects written in strict compliance with the agreement between Rasmussen and James McKnight. The allegation that since the time the papers were read by James McKnight to Rasmussen, the plaintiff "Rasmussen has discovered that the said deed, as it appears upon the record, runs in the name of the wife of the said James McKnight as grantee, to wit, the said Mary Ann McKnight," is no allegation that the deed was either frauduently written or read by James McKnight; or of any fraud whatever imputable to either James McKnight or to his wife: Pomeroy's Remedial Rights, 1st ed., 563. If the plaintiffs claim that the deed contained a name as the grantee therein other than the name of the person who by agreement was to be the grantee thereof, or that in this respect it was falsely read to Rasmussen by James McKnight, and that by reason of such fraud or mistake in the insertion of a wrong name as grantee, or by such false reading of the deed, he executed and delivered it in ignorance of its contents as to the grantee, then in such case, upon the proper or necessary allegations setting up the facts constituting the alleged fraud, the validity of such deed might be inquired into. The allegation" that the plaintiff Rasmussen does not know whether the said McKnight obtained the said deed in his wife's name by misreading the same to plaintiff Rasmussen or by obliterating the name and putting in hers," is not an allegation that it was done in either way, or that there was any fraud on the part of either of the defendants, and is not an allegation of ignorance, or want of full and complete knowledge of the facts on the part of his co-plaintiff Brown ; and the further allegation "that by whatever means it was done, it was done fradulently, and for the purpose of robbing and wronging the said plaintiff Rasmussen," does not cure or help the defect. Although it is a general rule of pleading that the plaintiff is not required to allege in detail all the minute facts constituting the alleged fraud, yet a general certainty is required in these matters, and the facts constituting the fraud complained of must appear on the face of the complaint. Fraud is a conclusion of law derived from facts, and is not to be presumed it is found only when the facts make it apparent. A general allegation of fraud in a pleading is not good when demurred to: The Railroad Company v. The Supervisors of Plumas County, 37 Cal. 354; Bliss on Code Pl. 211; Capuro v. Builders' Ins. Co., 39 Cal. 123; Triscony v. Orr et al., 49 Id. 612. The foregoing being in my opinion conclusive as to the sufficiency of the complaint, it is not necessary to consider the other questions raised by the demurrer, and ably presented by the brief of the counsel for the respondents. In my opinion, the ruling of the district court in sustaining the demurrer should be sustained. CAMPBELL ET AL. v. TAYLOR, COMPLAINT, SUFFICIENCY OF, IN AN ACTION BY AN ADVERSE CLAIMANT AGAINST AN APPLICANT FOR PATENT.-It is not necessary for a party to allege in pleading more than will constitute prima facie a cause of action or defense; all beyond this is surplusage. Therefore, in an action by an adverse claimant against an applicant for patent to quiet title to a mining claim, which appeared to have been a relocation of another claim formerly held by the defendant, a complaint which contains a general allegation of ownership and possession in the plaintiff is sufficient, although the facts constituting an alleged abandonment and forfeiture by the defendant are not pleaded. SURPLUSAGE IN A PLEADING IS NOT THE SUBJECT of a demurrer. APPEAL from the second district court. A demurrer to the amended complaint having been sustained, plaintiffs elected to stand upon the same, whereupon final judgment was entered for the defendant. The opinion states the facts. Marshall & Royle, and Hall & Marshall, for the appellants. No briefs on file. EMERSON, J.: By leave of the court, appellants filed an amended complaint, to which the respondent demurred and answered at the same time. The cause coming on for argument on the demurrer, it was sustained, with leave to the appellants to amend, which they declined, and elected to stand by their amended complaint. Thereupon the court dismissed the complaint, with costs against the appellants; whereupon they prosecute this appeal. The nature of the action is sufficiently set forth in the portion of the complaint copied below. The complaint alleges that the appellants were the owners entitled to and in possession of a certain mining claim situated in Pinto Iron mining district, Iron county, Utah, known and recorded as the Tip Top, particularly describing it by metes and bounds and by reference to a section and township of the government survey; and further alleges that "said 3 325 4 114 3* 445 7* 619 vein or lode bears iron and other minerals, and said mining claim contains an area of nineteen thousand seven and four acres, and the whole thereof in conflict and included within the boundaries of the Great Western Iron Mountain Extension of the Mountain Peak mining claim and lode or vein sought to be patented by the defendant from the government of the United States, situated in section 25, said township and range. "Plaintiffs further allege that the said Tip Top vein, lode, and mining claim is a relocation of a certain lode, vein, and mining claim, located and known as the Excell lode and mining claim, bearing iron and other minerals, situated in said district, county, and territory, and that the point of discovery, or discovery monument thereof, is and was the same and identical with and that selected for and established by the plaintiffs as and for the Tip Top lode and mining claim, and that the lode and area embraced in said Excell is about and substantially the same as embraced within the said Tip Top lode and mining claim; and in fixing the boundaries and in marking the claim upon the ground, and in making the monuments of said Tip Top lode, vein, and mining claim, the plaintiffs fixed upon and selected the same points for discovery and corner monuments that had been selected and fixed for the discovery and corner monuments for said Excell lode and mining claim by the locator thereof, and which are the said discovery and posts aforesaid repaired and rebuilt by plaintiffs, defining the lode and boundaries of said Tip Top lode, vein, and mining claim as aforesaid, the word 'posts meaning the corner monuments of the claims. And that in making the record of the location notice of said Excell lode and mining claim in and upon the mining records of said district, through inadvertence, there was a mistake made in giving the course 'south twenty-three degrees fifty-five minutes west from said initial point along the said center two hundred feet to a post in a mound of stone for the center of the easterly end, making one thousand five hundred lineal feet,' when the true course was and should have been south twenty-three degrees fifty-five minutes east; and also, through inadvertence, there was another mistake made in making the record of said location notice upon said record, in this, to wit: in |