In 1869 appellant executed to appellee a conveyance for fiveand two-thirds acres of land containing these provisions: "For and in consideration of a depot being located on the same, we hereby bargain, sell and convey to the Owensboro & Russellville R. R. Co." a certain defined boundary of land, and concluding: "In this transfer it is to be distinctly understood that said land is to be used by said railroad company for railroad purposes solely, and in case of any violation of this agreement by said company, then said land shall revert to us."

On the 15th of January, 1880, this suit was filed, alleging the construction of the railroad over the land, and its operation, but charging that no depot building had been erected thereon; alleging the width of the land occupied and necessary to be used in operating the road, and seeking to recover that portion of the land not necessary to the operation of the road. The petition closed with this prayer: "Wherefore, the plaintiff prays that the court adjudge said lands have reverted to the plaintiffs; that said deed be declared void; that plaintiff have possession thereof and for judgment for his costs and all proper and general relief.

The evidence tends to show that the road was constructed within a reasonable time, and operated with but little interruption up to the institution of this action, but also shows that no depot building was erected on the land.

There is in the petition no allegation that there was a failure, within a reasonable time, to erect or establish a depot building, nor is there any allegation of any demand or request to establish such a building, nor of damages resulting from such failure.

Section 90 of the present Code of Practice in civil cases which provides: "The petition must state facts which constitute a cause of action in favor of the plaintiff against the defendant, and must demand the specific relief to which the plaintiff considers himself entitled, and may contain a general prayer for any other relief to which the plaintiff may appear to be entitled. If no defense be made the plaintiff can not have judgment for any relief not specifically demanded, but if defense be made he may have judgment for other relief, under a prayer therefor," is simply an affirmation of what the practice was prior to the adoption of this provision.

Under that practice it was required that in order to have relief under a general prayer the relief must be consistent with that specifically prayed, as well as with the case made by the bill. (1 Daniel's Chancery Pleading and Practice, 378.)

Here the relief sought is inconsistent with that set out in the petition as well as with that specifically prayed. The petition sets forth an action for the partial rescission of the contract, while the prayer is for a complete rescission.

The erection of the depot appears to have been one of the considerations for which the conveyance was made, but not the sole consideration, and probably not the material consideration; but whether this court could reverse as the pleadings stand, if the erection of the depot were the main consideration, need not be considered, since the pleadings and the prayer to the petition are inconsistent and irreconcilable with the relief sought on this appeal.

Judgment affirmed.

Geo. W. Jolly for appellant.

Weir, Weir & Walker for appellee.

FRANK v. PEYTON.

(Filed May 31, 1884.)

1. Jurisdiction-Injunction- A having purchased of B a tract of land in Illinois and taken his deed for it, discovered that the deed was so defectively acknowledged that it could not be recorded there; B on learning this was trying to take advantage of it by selling the land a second time on an innocent purchaser, Held-A court of equity in Kentucky has jurisdiction to enjoin B from making the sale, he being within the process of the court, although the land was not.

Appeal from Breckinridge Circuit Court.

Opinion of the court by Judge Pryor.

The appellant, J. H. Frank, purchased of Peyton and wife a tract of ten acres of land lying in Cook county, Illinois, for which he paid Peyton $500, and accepted the deed of the grantors, passing to him, as he supposed, such a legal title as could be recorded. The mode of acknowledgment was so defective as by the law of Illinois prevented it going to record as evidence

of title against innocent purchasers. He holds the legal title, but on such condition as will not protect him against those who may purchase of his vendor.

These facts are alleged in a petition in equity filed by the appellant, with the further allegation that the appellees were attempting to dispose of the property by sale to others, and that by the law of Illinois the innocent purchaser would hold as against an unrecorded deed. An injunction was obtained prohibiting the parties from selling until the questions raised by the petition could be determined.

The appellees filed a demurrer to the jurisdiction and also an answer, alleging that the deed was in the nature of a mortgage and so intended by the parties when executed, etc.

When an issue was tendered by the reply to the answer the court below sustained the demurrer to the jurisdiction and dismissed appellant's petition.

The facts disclosed in the petition shows clearly that the appellant is the owner of the land by reason of the conveyance from the appellees, and that this title is imperiled by the efforts on the part of the appellees to sell the land to some one else. They had received of the appellant the purchase money and were attempting to deprive him of his title, and, being insolvent, the remedy in the warranty was ineffectual, or, even if solvent, the appellant was entitled to such a conveyance as would protect him against all parties. This is not an effort to sell the land to raise the purchase money paid by the appellant, but the chancellor is only asked to require the appellees to do what they agreed and attempted to do by the delivery of the deed with the defective acknowledgment; that is, make them such a conveyance as by the law of Illinois can be recorded so as to notify third parties of appellant's titles. This proceeding in equity acts upon the person and the fact that property in another jurisdiction may be affected by it is no objection to the relief. The relief sought or the action brought is purely transitory, and there is no reason for requiring either of these parties, both living in this State, to seek the aid of an Illinois court for the relief to which the appellant, if his statements are sustained, is clearly entitled.

In the case of Massie v. Watts, 6 Cranch, 148, Watts, a citizen of Virginia, brought an action in equity against Massie, a

citizen of Kentucky, to compel the latter to convey to the former 1,000 acres of land in the State of Ohio, upon the ground that Massie had obtained the legal title with notice of the plaintiff's equitable title. This bill was sustained and the relief granted. The present action is not an attempt to recover the land by a better or superior title, but to cure a defect in an executed agreement, defective merely in its acknowledgment, and there is no reason, when the mode of curing the defect is clearly pointed out, why the relief should not be given. Judgment reversed and cause remanded, with directions to overrule the demurrer to the jurisdiction and for proceedings consistent with this opinion.

It is not insisted in argument that the feme can be compelled to relinquish her dower by the chancellor.

Kincheloe & Eskridge for appellant.

Jno. Allen Murray and Wm. R. Haynes for appellee.

DUGAN v. CORN.

(Filed June 5, 1884.)

1. Deed-Acknowledgment - Record - Under Revised Statutes, chapter 24, sections 14 and 23, the deed of a married woman is not valid unless lodged for record within eight months from the date thereof. If not lodged within that time it must be re-acknowledged before it will become valid.

Appeal from Carroll Circuit Court.

Opinion of the court by Judge Lewis.

Thomas Dugan, husband of appellant, in May, 1867, sold, delivered possession of, and executed a covenant to convey to McBrayer two lots of land in the town of Carrollton, whereon was a hotel building, in consideration of $1,350, for which a bill of exchange was drawn, and a lot of whisky to be thereafter delivered.

In February, 1868, an action on the bill of exchange was instituted by Dugan against McBrayer and others in the Jefferson Court of Common Pleas, which was afterwards transferred to the Louisville Chancery Court, when in June, 1869, a personal judgment was rendered for the amount sued for.

During the pendency of that action, to which defense was

made, Dugan filed with his pleading and tendered in court a deed to the hotel property executed in December, 1867, by him. and appellant to McBrayer, which appears to have been acknowledged in due form of law by each of them.

In July, 1868, Dugan instituted an action in the Carroll Circuit Court to recover judgment for the value of the whisky, which he alleged McBrayer had failed to deliver, and for the enforcement of his lien on the property sold. In his petition he stated that in accordance with his contract he had executed and tendered to McBrayer a deed conveying to him the property, retaining a lien as was agreed in the title bond, which deed was then on file in the Louisville Chancery Court.

To that action no defense was made, and in September, 1868, judgment was rendered against McBrayer for the value of the whisky, and for a sale of the property to satisfy it. And afterwards it was, in pursuance of the judgment, sold and purchased by one Brewer, who transferred his bid to appellee, the latter paying the purchase price, and in March, 1870, receiving a commissioner's deed and the possession of the hotel property.

Thomas Dugan died in March, 1873, and in April, 1868, appellant instituted this action for the allotment to her of dower and recovery of one-third in value of rents accruing from that time.

The deed executed by Thomas Dugan and wife in December, 1867, and tendered to McBrayer, was never recorded or lodged for record in the proper office until August, 1878, when it was withdrawn by appellee from the Louisville Chancery Court, and, as appears from the certificate of the clerk of the Carroll County Court, produced to him and admitted to record in his office.

The question now presented is whether appellant is, notwithstanding the deed duly executed and acknowledged by her husband and herself to McBrayer in 1867, entitled to dower in the hotel property.

Section 14, chapter 24, Revised Statutes, which has been readopted in the General Statutes, is as follows: "Deeds made by residents of Kentucky, other than deeds of trust and mortgages, shall not be good against a purchaser for a valuable consideration not having notice thereof, or any creditor, except