(concurring specially). The property involved in this controversy originally belonged to one Gottlieb Grouuitz. He was a widower with three children,—Emil Grounitz, Elmer Ed*40ward Grounitz, and Clara (Hall). In July, 1902, Gottlieb Grounitz deeded the land in controversy and a house and lot in the city of Lisbon to his son, Elmer Edward. Gottlieb Grounitz died on or about May 1, 1913, leaving said three children as his only heirs at law. In April, 1915, Emil Grounitz brought an action in the district court of Ransom county against his brother and sister as defendants. In such action he averred that such property had been deeded to said Elmer Edward Grounitz with the understanding that he “would pay the net proceeds derived from the operation of said lands and premises to the said Gottlieb Grounitz for his maintenance and support during his lifetime, and after his death to divide the said lands and premises equally among the three children of said Gottlieb Grounitz.” The complaint averred that the reasonable value for the use of said farm property was $400 per year, and $20 per month for said city property • and that demand had been made upon said Elmer Edward Grounitz for a deed conveying a one-third interest in said real property, and the payment of one third of the proceeds received from said property, and that such demand had been refused. The prayer for judgment was “that said conveyance from the said Gottlieb Grounitz be deelai'ed a trust deed in conformance with the facts hereinbefore stated, and that an accounting be had between the defendants Elmer Edward Grounitz and Clara Hall and the plaintiff, and that the amount so found to be due on said accounting be declared to be held in trust for the uses and purposes aforesaid, and be distributed between this plaintiff and defendants share and share alike, and for the costs and disbursements of this action, and for such other and further relief as may to the court seem just and meet in the premises.”
Summons and complaint in such action were served upon the defendants in the manner set forth in the opinion prepared by Mr. Justice Bronson. Judgment was entered by default:
(a) “That the defendants Elmer Edward Grounitz and Clara Hall have no interest in or title to the premises involved in said action.
(b) “That the plaintiff Emil Grounitz is the owner in fee simple”' of said premises.
' (c) “That the said'defendants Elmer Edward Grounitz and Clara-Hall and each of them are hereby enjoined from further asserting title-to-or interest in said premises.”
*41The title asserted by tbe defendants and intervener. is predicated upon sucb judgment.
In the opinion prepared by Mr. Justice Bronson, it is held tbat tbat judgment is void; and tbat the plaintiff is not estopped from so asserting. I concur in these conclusions. I believe tbat tbe judgment was void even though tbe affidavit .for publication be considered sufficient. Tbe court confessedly never bad jurisdiction over tbe persons of the defendants in tbe action. At the most, it bad jurisdiction of tbe res. Tbe plaintiff was required to embody in bis complaint a demand of the-relief to which be supposed himself entitled. Comp. Laws 1913, § 7440. And where tbe defendant fails to answer, “the relief granted tbe plaintiff cannot exceed that which be shall have demanded in bis complaint.” Comp. Laws 1913, § 7680. Where tbe judgment awards-relief beyond the prayer of tbe complaint or tbe scope of its allegations, tbe excessive relief appearing from tbe face of tbe record is void for want of jurisdiction. Sache v. Wallace (Sache v. Gillette) 101 Minn. 169, 11 L.R.A.(N.S.) 803, 118 Am. St. Rep. 612, 112 N. W. 386, 11 Ann. Cas. 348. It seems to me tbat tbe judgment awarded Emil Grounitz against bis brother and sister falls within this rule and tbe statutory time limit of one year in which to move to vacate a default judgment does not apply. Freeman v. Wood, 11 N. D. 1, 88 N. W. 721.