OPINION BY THE COURT.
ROBERTS, C. J.Several grouiids of error are presented by appellants, but in view of our cppclusion, it is not necessary to give any consideration to them, as appellants admit that if the complaint fails to state facts sufficient to constitute a cause of action, the order of the trial court in setting aside the judgment was properly made, even though the term at which it was entered had expired. Cyc. vol. 23, p. 905 lays down the rule, and it is supported by the uniform holding of practically all the courts, that
“Where a judgment is entirely void for want of jurisdiction the power to vacate it or set it aside is not limited to the term at which it was rendered, but may be exercised át a succeeding term.”
And if the complaint failed to state facts sufficient to constitute a cause of action, the court had no jurisdiction to enter any judgment thereon.
The portion of the complaint necessary to consider, to dispose of the question as to its sufficiency, reads as follows :
“The plaintiffs, by Edward C. Wade, their attorney, complain of the above named defendant and complaining allege:
“1. That the plaintiffs, by virtue of divers deeds of conveyance and confirmation from the grant of the Colony of Refugio, a body corporate, and of long and continuous adverse possession under color of title by themselves and their predecessors in interest, are the owners in fee simple of the following tracts of land situated in the county of Dona Ana and Territory of New Mexico- and in that certain land grant commonly known as the 'Refugio Colony Grant’ confirmed by the Court of Private Land Claims to the Corporation of Refugio in and by a certain decree of July 13, 1901, that is to say,”
The pleader then sets out a full description of the real' estate by metes and bounds.
Appellee contends that the above allegations do not show a fee simple title in appellants and that the statement as to the title of appellants is but a legal conclusion based upon and drawn from the facts previously pleaded. It requires no argument to sustain the proposition that a party, seeking to have his title quieted against, an adverse claimant, must show title in himself, to the lands in controversy, and the complaint must gllege, clearly and directty, and with certainty to a common intent. such title in the plaintiff; 32 Cye. 1350. It is also true that allegations respecting title must not be in the shape of legal conclusions, but the facts must be expressly averred, or other facts must be alleged from which the fact of title is necessarily inferred; 21 Enc. PI. & Pr. 718.
The appellants, in their complaint do not allege that they are the owners in fee ‘simple of the real estate described in the complaint, clearly and directly, but say '“by virtue of divers deeds of conveyance and confirmation from the Grant of the Colony of Eefugio and long .and continuous adverse possession, etc.,” they are the owners in fee simple of the real estate. In vol. 21 Enc. PI. & Pr. at page 719, this principle is announced: “An averment that a person is possessed of property ‘by virtue of’ a deed of conveyance, etc., is merely an averment of ■a conclusion of law, and is insufficient as an averment •of Title/ ” and the text is fully supported by the cases of Turner v. White, 73 Cal. 299; Miller v. Stalker, 158 Ill. 514; and May v. Attelboro First Nat. Bank, 19 Ill. App. 604. See also Street v. Sederburg, 92 Pac. 29, where the Supreme Court of Colorado reviews the authorities.
1 If the facts stated in the pleading, from which the conclusion of law is drawn, are in themselves sufficient to state a cause of action, of course the conclusion drawn therefrom could be treated as surplusage and disregarded, but in the case now before the Court, the facts stated are clearly insufficient. We do not understand appellants to contend that the allegations of title by adverse possession are sufficient, and of course such contention would be wholly without merit, for where one undertakes to allege that he has title by adverse possession he must allege that his possession was attended by all the circumstances requisite to constitute such adverse possession, 13 Enc. /PI. & Pr., 285, and therefore no further attention need be devoted to this proposition.
2 The complaint does not show that the Colony of Eefugio, from whom title is deraigned, ever had title to the real estate in controversy. It is true there is an allegation that this land, with other real estate, was confirmed by' the Court of Private Land Claims to the “Corporation of Refugio/’ but the complaint does not say-that the “Colony of Refugio” and the “Corporation of Refugio” are one and the same, or that the “Corporation of Refugio” ever conveyed to the “Colony of Refugio,” or that the original grantor was the owner in fee simple of the real estate, at the time it conveyed same,, and, as we understand the effect of a confirmation by the-Court of Private Land Claims, it simply effected a release of claim of title by the United States government -and did not affect private rights of persons, as between themselves and other claimants or persons; in other words-such confirmation did not purpose to convey title, hence-the allegations in the complaint amount to nothing more than that the plaintiffs, by virtue of certain deeds and confirmation, (from a party, not shown to have- been the-owner in fee simple, of the real estate) were the owners in fee simple of the real estate. This conclusion, that they are the owners in fee simple, necessarily depends-upon the deeds, etc., from the Colony of Refugio, and if in fact the Colony of Refugio had no title, or the conveyances were not sufficient to pass title, the appellants-would have no interest in the real estate. The fee simple title of the appellants depend altogether upon the-facts previously pleaded, and thesé facts are not sufficient to support the conclusion. This is an omission in the pleading and no intendments or inferences-can be indulged in by the Court to aid the party in whose pleading a material omission occurs, Street v. Sederburg (Colo.) 92 Pac. 29, and especially should this rule be applied where a cause has not been heard on .the merits.
3 The error, on the part of appellants in drafting their-complaint, was doubtless occasioned by a misconstruction of sub-section 374 of article 16 of the Session Laws-of 1907, which provides that the plaintiff must set forth “the nature and extent of his estate,” in actions to quiet, title. This section does not require a party to set forth any facts, as to the derivation of his title, but simply requires a statements of the ultimate fact as to his ownership, and whether he claims a fee simple estate, or life estate, or other interest, whatever it may be. Had the appellants simply alleged that they were the owners in fee simple of the real state dscribed, the complaint would have been sufficient in that regard. Ely v. The New Mexico & Arizona Railroad Co., 129 U. S. 291.
The appellants cite the case of Gabe v. Root, 92 Ind. 256; Fudickar v. East Riverside Irrigation District, 41 Pac. 1024, (Cal.); Stoddart v. Burge, 53 Cal. 295, and Magnolia Anti-Friction Co. v. Singley, 8 N. Y. Supp. 463, as supporting their contention that the complaint in this cause states facts sufficient, but a careful reading of the eases will show that they do not conflict with our conclusion.
From what we have said it follows that the complaint, upon which the default judgment was based, fails to state facts sufficient to constitute a cause of action, therefore the Court had jurisdiction to set aside the judgment even though the term of court at which such judgment was rendered had expired, and the order of the Court thereon was not a final judgment from which an appeal would lie. The appeal is therefore dismissed, and the cause remanded to the District Court of Dona Ana County for further proceedings consistent with this opinion.