delivered the opinion of the Court, Wallace, J., Temple, J., and Sprague, J., concurring,
Lewis was the owner of one undivided eighth of that portion of the rancho Rinconada del Arroyo de San Francis*534quito, of which the grantee of the rancho died seized, amounting to about two thousand two hundred and five acres. That interest iras acquired by him from Soto, one of the heirs of the grantee. At the same time, the wife of Lewis owned (or it was so understood by her and her husband) an undivided interest in the rancho, amounting to twenty-five acres. Lewis contracted to convey the interest which he acquired from Soto to Mercier, the plaintiff; and, about the same time, he agreed to convey to Hemme, one of the defendants, the interest held by Mrs. Lewis. This interest, it was understood, was held for Mrs. Lewis by Moultrie, the attorney for Lewis. Lewis and Hemme applied to Moultrie, and requested him to convey to Hemme the undivided twenty-five acres; but they were informed by Moultrie that he had conveyed the same to Mrs. Lewis. It was thereupon arranged, at the suggestion of Moultrie, that Lewis should convey to Hemme the undivided eighth of the Soto interest, and that Lewis and wife should unite in a deed to Mercier, by which they should convey to him all their remaining interests in the rancho. By reason of certain facts, not necessary to be mentioned, they were unable to ascertain, at that time, the extent of the Soto interest; but it ivas thought that there would be no material difference between the one eighth of it and the interest claimed by Mrs. Lewis. The deed of Lewis to Hemme ivas then drawn by Moultrie, and by mistake it was so drawn that it conveyed to Hemme the whole instead of the eighth of the Soto interest.
The deed to Hemme and that to Mercier were executed on the same day, but that to Hemme Avas first executed and recorded. Hemme knew of the arrangement betAveen Lewis and Mercier, but Mercier had no actual notice of the purchase of Hemme, until a short time before the commencement of this action. Hemme, about a year after his pur- ■ chase, conveyed to Seaton whatever interest he (Hemme) acquired by his deed from LeAvis.
The plaintiff alleges that the deed of Lewis to Hemme was without consideration, “ and was made with full knowledge by all parties thereto of the purchase made by plaintiff, and in anticipation of the conveyance ■ to him, and for the' *535exjiress purpose of defrauding him; ” that Seaton purchased with full notice of the rights and equities of the plaintiff; and that the respective deeds to Hemme and Seaton are clouds upon the plaintiff’s title.
All the defendants deny the alleged fraud. On the trial, the plaintiff having failed to prove the fraud, Hemme and Lewis offered to prove the mistake in the deed to Hemme; and, objection being made by the other defendants (the heirs and legal representatives of Seaton), on the ground that no mistake was averred, the Court, of its own motion, ordered that Lewis and Hemme have leave to file “ an additional answer ip the nature of a cross bill against the defendants, Seatons, setting up said alleged mistake.” They accordingly filed their cross bill, alleging said mistake, and the Seatons interposed a demurrer thereto on the ground that it did not state facts sufficient to constitute a cause of action against them. The demurrer was overruled, and the Seatons having answered the cross bill, and the cause having been heard, the Court found xthe alleged mistake, and rendered judgment for the plaintiff, that the Seatons are seized of seven eighths of the Soto interest in trust for the plaintiff, and ordered that they convey the same to him.
It is apparent that the judgment is erroneous. The plaintiff’s allegation of actual fraud is' not sustained by proof of the mistake. It is insisted by the plaintiff that the mistake amounts to constructive fraud; but that is not true as a legal proposition, and, if it were true, he has not stated a case of constructive fraud. Lewis and Hemme, in their cross bill, averred the mistake, but they did not recover judgment, nor were they entitled to judgment, for neither of them had any interest in the property during the pendency of the action. The plaintiff cannot rely on the cross bill as stating a cause of action in his behalf, for the obvious reason that a party rvho seeks relief must himself state the facts upon which he relies for relief.
Judgment reversed and cause remanded, with direction to sustain the demurrer to the cross bill, with leave to plaintiff to amend his complaint.
By Crockett, J.: I dissent.