#### ABNER GENTRY, Appellant, *v.*TALBOT H. LOW, Respondent.

Sufficiency of Complaint. Where plaintiff, in an action to have defendant . .declared his trustee as to certain lots in Carson City, set forth that he had purchased the same at a sheriff’s sale upon foreclosure of a mortgage, had procured a sheriff’s deed, and was the owner.thereof; and that between the dates of his purchase and sheriff’s deed the defendant, colluding with the mortgagor and fraudulently representing himself as the true owner, had prevented a conveyance of the legal title from the trustee of the town site: *Held,*that the complaint was utterly defective in not setting out that the mortgagor, whose interests he had. purchased, would have been entitled to a conveyance of the legal title.

Legal Title op Land in Trust. To hold one who has obtained the legal title of land as a trustee for another, who claims to be the owner, as being substituted to the rights of a third person, it is necessary to set forth and show that such third person was the owner.

Appeal from the District Court of the Second Judicial District, Ormsby County.

. The trial in the Court below took place before the Hon. C. N. Harris, Judge of the Third Judicial District, who for the time being occupied the bench. It appeared in evidence among other things, that Hon. S. H. Wright, Judge of the Second Judicial District, held the legal title of the town site of Carson City, by patent from the United States in trust for the occupants, under the Act of Congress of May 23, 1844; that on Sept. 7, 1866, he gave public notice of the receipt of the patent as prescribed by law; that within the sixty days allowed by the law of the State to file claims, defendant, Low, filed with said judge a claim for the lots in question, and that no other person filed any claim. The foreclosure sale took place on August 29, 1866, the lots being bid off for $550.

*Will Campbell*and P. *H. Clayton,*'for Appellant.

*Ullis and Saiuyer*and *Gteo, A. Nourse,*for Respondent.

By the Court,

Beatty, C. J.

This was a bill filed for the purpose of having the defendant de-*100dared a trustee for plaintiff, as to a certain piece of land, the legal title of which he had recently acquired.

The bill alleges that the property in dispute (certain lots in Carson City) was sold under a decree to foreclose a mortgage against Moses Haynes and wife ; that plaintiff at the sale under such decree became the purchaser, and in due time got a -sheriff’s deed for the property, and has since then been the owner thereof; that between the time of his purchase and the expiration of the six months allowed by law for redemption, when he obtained the Sheriff’s deed, S. H. Wright, District Judge of the Second Judicial District of the State of Nevada, and ex-officio Trustee of the occupants of the town site of Carson, gafe a conveyance of this property to defendant. The defendant, colluding with Moses Haynes to injure plaintiff, had fraudulently represented to said Wright that he was. the owner of said property and entitled to the deed therefor. This is in substance the entire bill. There is an answer denying nearly everything contained in this bill, and setting forth some new but immaterial facts.' The case Avas heard on the complaint, ansAver and proofs, and plaintiff’s bill dismissed.

It appears to us this was the proper order to be made in the case.. The complaint is utterly defective. It does not show that Haynes and wife or either of them ever were in the possession of the property in dispute, or in a condition to obtain a deed from the trustee of the town site of Carson. It does not shoAV that if plaintiff had been fully substituted to all the rights of Moses Haynes and wife, he ever would have been in a condition to claim a conveyance from Judge Wright. It does not pretend to show that Low obtained his possession (upon which right alone he obtained his deed) from Moses Haynes and Avife or either of them. It does not pretend to show that defendant obtained the deed for the benefit of the Haynes, or was in any manner connected Avith them.

Judgment of the Court below affirmed.