(dissenting) : I think the district court was correct in sustaining a demurrer to the plaintiffs’ petition, and I do not think that weakness or indefiniteness of statement at all characterizes .the pleading, as my very indulgent and charitable brethren say. The allegation referred to describes in sufficiently clear and vigorous phrase the deed' which was executed and deposited, but nothing else. It simply uses the common expression, “warranty deed, . . . free and clear of all encumbrances,” interpolating between the first two words and those that follow the name of the grantee and the description of the land.
In addition to the deed being a warranty deed it was necessary that it be “good and sufficient.” A glance at the judicial interpretations of these words in volume 4 of Words and Phrases Judicially Defined, page 3109, will reveal their materiality. There is no allegation that the land was free and clear of all encumbrances, and there is no allegation that there were no clouds on the title. There is no allegation that the abstract deposited showed a title clear of all encumbrances and clouds. The contract contained a specific engagement that such an abstract would be furnished, and until that was done no right of recovery accrued to the plaintiffs.
The board of law examiners will be surprised and grieved to find the petition in this case printed in the reports of the decisions of this court as an approved precedent.
Mr. Justice Smith authorizes me to say that he joins in this dissent.