#### L. M. and Elizabeth Walker, Appellants, v. Pinkney L. Walker.

Practice: affirmative relief. A defendant who pleads expendi-1 tures simply as a reason why plaintiS should be estopped, is not 3 entitled to judgment for the amount expended, in the absence of 4 a counter-claim or prayer for special or general relief.

Judgment Defined. Adjudging a deed to be void and decreeing that ■ 2 plaintiff pay defendant a sum, made a lien, and sale of premises upon default, is a final judgment.

*Appeal from Cedar District Court.*— Hon. J. D. Q-ieeen, Judge.

Wednesday, January 30, 1895.

The plaintiffs are husband and wife, and the defendant is their son. On the second day of January, 1890, the plaintiffs executed to the defendant an instrument in writing, conveying to the defendant one hundred and sixty-five acres of land, upon certain conditions therein expressed, as follows:

“The said Pinkney L. Walker shall keep, care for, support,, and furnish a good home to the said Lewis M. *644.Walker and Elizabeth Walker during either of their lives; furnish them, and each of them, proper care and medical attendance in sickness; and give their bodies proper burial after.death. The said Pinkney L. Walker shall keep the fences and buildings on said premises in good repair at all times, and shall pay all taxes of every kind now due or to become due thereon, and not to allow any taxes on said premises to become delinquent at any time. It i,s expressly agreed and stipulated, and made a part of this deed, that said Pinkney L. Walker shall, within five years after the death of the longest liver of said Lewis M. Walker and Elizabeth Walker, pay to Joel M. Walker the sum of one thousand ($1,000) dollars, without interest. And it is expressly stipulated that the claim of Joel M. Walker for the payment to him of said one thousand dollars is, and until paid shall be and remain, a special lien upon and against the aforesaid premises; and this deed, when delivered, shall vest in the second party the title to said premises, subject to the said claim of Joel M. Walker. Upon the failure of the second party to furnish the first parties, or either of them, with a suitable home, or to properly care for and support them, or either of them, or if the second party shall refuse or fail to keep', observe, perform and carry out each and every condition by the terms of this deed required to be kept, observed, pierformed, or carried out by said second party, then, and in any of such cases, this deed shall be and become void and of no effect. This deed is by the grantors delivered to Wolfé & Hanley, of Tip-ton, Iowa, in escrow, to be by them or their successors delivered to the said Pinkney L. Walker on the death of the longest liver of the said Lewis M. and Elizabeth Walker, provided that the second party has not, prior to said time, done or neglected to do any act making *645this deed void. It is expressly stipulated that the covenants and agreements to keep, support, and furnish a home for the first parties are personal, and must be kept and performed only by Pinkney L. Walker, or Mis heirs in case of Ms death prior to the death of the grantors. Signed this second day of January, 1890. Lewis M. Walker. Elizabeth Walker.

“I hereby approve of the above deed, and consent to the conditions therein contained and imposed on me. P. L. Walker.

“Acknowledged before E. W. Aikens, J. P.”

On the margin of the instrument iis the following:

“By mutual agreement of all parties to this deed, it is hereby agreed that the words and figures ‘one thousand ($1,000) dollars’ and ‘$1,000/ in lines No. 7 and 11 (No. 4 and 7 of this, copy) of this page, are this 29th day of May, 1890, changed to read ‘fifteen hundred ($1,500) dollars/ by this indorsment; and, in consideration of the said Pinkney L. Walker assuming the payment of said additional $500.00, the grantors hereby deliver this deed, and agree that the same may at once be placed of record.

“Note. TMs increases the amount to be paid to Joel after the death of both grantors to $1,500.00.”

It is averred in the petition that the indorsement on the margin of the instrument was placed there without the agreement or consent of the plaintiffs, and that it does not correctly state any agreement of the parties. It is further averred that there is a breach of the conditions in many particulars, wMc'h the petition summarizes as follows: “Said plaintiffs further aver that said defendant has not furnished said parties, or either of them, a good and suitable home, or properly cared for and supported them, and has neglected to pay the taxes on said premises, and has allowed them to become delinquent; and that, if said instrument *646were valid, then, because of such breaches and failure to comply with the terms and conditions thereof, the same, under the provisions as above stated, became void and of no effect.” It is then averred that the defendant fraudulently procured the delivery of the deed; and there is a prayer that it be adjudged void and of no' force or effect, that it be canceled of record, and for general equitable relief. The answer admits the 'execution of the instrument of conveyance; denies that the indorsement on the margin thereof was not placed there with the consent of the parties; and avers that it was so> placed there, and that the instrument was delivered and' placed of record in pursuance of the understanding of the parties; denies, that there has been a breach of the conditions of the instru-1 ment on his part; avers a full compliance therewith, and a readiness to do' so in the future. As to the failure to pay the taxes on the land, the answer represents that the failure to. pay was by mistake, and, when discovered, the land was promptly redeemed; and that, as to said payment of taxes' and the delivery of said instrument from escrow, the plaintiffs, with knowledge of the facts, acquiesced in the situation, and treated the instrument as valid, and waived the objection as to the accidental omission to pay the taxes.. It is averred that the defendant, relying on the waiver of the plaintiffs and their, recognition of the contract, put his labor on said land, and expended all his means thereon. It is averred that, “by reason of the facts set out in defendant’s amended answer, they [plaintiffs] are estopped from denying the validity of the deed,” etc.; and the pleading concludes as follows: “Wherefore defendant says there is no equity in plaintiffs’ petition, and he asks that the case be dismissed at plaintiffs’ costs.” *The*District Court granted the *647prayer oí plaintiffs’ petition by adjudging the conveyance void, and quieting the title in the plaintiffs. It then made the following entry in behalf of the defendant: “It is farther ordered, adjudged, and decreed that the said plaintiffs pay-to the said defendant, within thirty (30) days from the date of this decree, the sum of seventeen hundred dollars ($1,700.00), which sum shall' be in full payment and satisfaction for any and all sums which said Pinkney L. Walker has put upon said premises since January 2, 1890, and in full of ail' services from himself and wife rendered to> or on behalf of said plaintiffs since January 2,1890, the date of said deed; and that said sum shall bear six per cent, interest from this date until paid, and shall be a lien upon said premises above described; and that a special execution issue in case said sum is not paid, and said premises except the homestead, or so much thereof as may be necessary, be sold to satisfy said judgment, together with costs and accruing costs.” From the judgment, favorable to the defendant, the plaintiffs appealed.—

*Reversed.*

*Milton Remley*and *Wheeler*& *Moffit*for appellants.

*Wolf & Hanley, R. G. Cousins,*-and *S. II. Fuirall*for appellee.

Granger, J.

A somewhat fall statement of the pleadings has been necessary to an understanding of the question to' be considered. Appellants’ claim is that the judgment for one thousand seven hundred dollars, for the defendant, is neither warranted by the pleadings nor the evidence. The conclusion is one that cannot, in view of the record, be avoided. It is said by appellee that the record entry is not a “judgment,” *648within the usual meaning of the word. It seems to us that it is a judgment The record determines that the plaintiffs shall pay the defendant one thousand seven hundred dollars, with interest, and creates a lien on plaintiffs’ land to secure its payment. Had defendant asked for judgment, we do not see how the court could 2 have more fully granted the relief prayed. The language of the record is: “It is farther ordered, adjudged, and decreed that the said plaintiffs pay to the said defendant * * * seventeen hundred dollars,” making the same a lien, and concluding with the order that “said premises, except the homestead, or so much thereof as may be necessary, be sold to satisfy said judgment, together with costs.” The record shows that an amount should be paid to satisfy a judgment The record is certainly a final ■adjudication of the rights of the parties, and our law provides that “every final adjudication of the rights .of the parties in an action is a judgment” Code, section 2849.

No counterclaim is pleaded, nor is relief of any kind asked. The defendant, after a full statement of the facts by way of relief, asks that plaintiffs’ petition 3 be dismissed. He neither asked for special nor general relief. Nothing in the record indicated to> plaintiffs that they were called upon to oppose a claim for a money judgment, or the establishment of a lien on their premises. In *Johnson v. Mantz,*(19 Iowa, 710, 27 N. W. Rep. 467, it is said: “Relief cannot be granted by a decree which is not specifically prayed for, or within the contemplation of a general prayer for relief.” The j udgmeut in this case is plainly against the rule of that case, and no authority is shown, or attempted to be shown, to sustain the action of the court. It is true that facts are pleaded in the answer, *649and. there is evidence to establish them, as to improvements made on the promises by the labor and expenditures of the defendant, but they were neither pleaded 4 nor proven with a view to obtain judgment for their value. The defendant pleaded, in avoidance of the claims of plaintiffs, that the instrument of conveyance had not been properly delivered, so as to take effect, and also his failure to pay the taxes as he had agreed; that, after the delivery and payment, the plaintiffs acquiesced therein, and treated the contract as valid, and waived the defects, if any, In the delivery of the deed and the omission to pay the taxes; and that, relying on such waiver, he performed the labor and mad'e the improvements on the land; and he asked, because of these facts, that plaintiffs be “estopped from denying the validity of the deed,” etc. It was for this purpose that the facts were pleaded, and no other. This is plainly manifest from the pleadings and the record. Under such issues, the plaintiffs were only called upon to meet the facts pleaded in a way to avoid the claim of estoppel, which would not, or at least might mot, require particular proofs as to amounts or values, but only enough to establish equities against the plaintiffs. It is quite clear to ns that the judgment is erroneous, and, to the extent that it gives a judgment against the plaintiffs, it must b'e reversed, with all costs against defendant. We are, however, of the opinion that care should be taken to avoid a bar to the rights of defendant to substantiate Ms claim in, this or another proceeding, and the action on this appeal is without prejudice to such a right; and the cause is remanded, with instructions to permit the pleadings to be so amended in this action, if the parties are so advised, that the rights of defendant under the contract can be *protected.*— Reversed.