(dissenting) — I do not think the reply shows such a departure from the cause of action stated in the complaint as to justify a dismissal of the case. The complaint alleges ownership in the plaintiffs. The answer alleges ownership in the defendant. The reply, in effect, alleges: (1) that the defendant’s deed was procured by means of fraud; and (3) that if it is effective for any purpose, it is a mortgage for a sum not to exceed $650. If the plaintiffs cap establish any of the facts stated, they can quiet their legal title. The fact that, under a certain contingency, they cannot get all the relief prayed for in the complaint does not defeat their action. This view is supported in principle by Sanford v. Royal Ins. Co., 11 Wash. 653, 40 Pac. 609. While I do not commend the plaintiffs’ pleadings as a model for the bar of the state, I think that an issue is joined which should be determined by the court. I therefore dissent.
Dunbab, C. J., concurs with Gose, J.