¶1The opinion of the Court was delivered by
¶2This is an action to annul a sale of real estate by the plaintiff to the defendant on the ground of lesion beyond moiety, and to have herself decreed the owner of the property.
¶3The defense is that the tranfer is valid and, if not, that the plaintiff should be condemned to pay for improvements on the land.
¶4From an adverse judgment the plaintiff prosecutes this appeal.
¶5It appears that on the 19th of July, 1883, the defendant, by notarial act, in consideration of natural love and affection, donated the property in question to the plaintiff, his daughter, and that she, on February 16, 1886, by a notarial act, on its face purporting to be a sale, transferred the same to him, apparently, for one thousand dollars.
¶6It is claimed that the property was shown at that last date to be worth eleven times that sum ($11,000), and the contrary is not pretended.
¶7The record contains as plaintiff’s evidence the acts of donation and sale, the value of the property at the date of sale. In it is found also testimony as regards the defendant in support of his claim for improvements.
¶8The fundamental ground of the action is lesion, that is injury suffered in not receiving a full equivalent for the property. This remedy *926is founded on its being the effect of implied error or imposition. R. C. C. 1860.
¶9The petition, however, sets forth the formal averment that the consideration of the sale never was paid.
¶10Tt does not allege that the amount, in the bona fide intendment of the parties was to have been paid, or state any circumstance from which it can be inferred that the injury said to have been sustained is the result of any eiror or imposition. It does not even insinuate that on some fraudulent or unfair representation, on his part, the defendant has dishonestly withheld it.
¶11In the face of the allegation of non-payment, and in the absence of any charge impugning tire good faith of the defendant, it must be deduced that the price mentioned in the deed, never was contemplated to be paid, and that the form of sale was preferred and adopted, as the best usual mode or channel for the gratuitous transmission in view of the property by the original donee to her donor.
¶12If, then, no price was designed to be paid, and the purpose of the transaction was simply a transfer of the property back to the latter, how can it be consistently pressed that injury was sustained to any. extent, in consequence of the non-payment ?
¶13It is clear that, but for the allegation of non-payment, the plaintiff should have recovered in the absence of counter legal evidence; but it is apparent that by this judicial admission, the plaintiff has closed her mouth against any complaint of injury sustained, and thus irrevocably put herself out of court.
¶14The maxim : JBestitmtur tanquam Icesus fully applies.
¶15The donation and the transfer of the property back must be considered under the light of, and together with, the averment in the petition.
¶16Viewed as a whole, the plaintiff must be held, therefore, as having solemnly declared, in the most conclusive manner that she has, without any consideration, and in the form of a notarial act of sale, willfully, knowingly and gratuitously, conveyed to her father, the defendant, the property which he had some time previously donated to her.
¶17She had a perfect right to do this, and having done it, she is concluded by her acts.
¶18It is unnecessary to pass upon the nature and character of this conveyance, and say whether it be a donation, a cancellation or a revocation of the previous donation, or a retrocession, or any other act.
¶19It is manifestly a title translative of real estate which has served as a vehicle to accomplish the purpose of the parties, as proved by their *927deed, which was, to pass the property from the plaintiff’s name to that of her father. Stat mole.
¶20The district judge, iii an elaborate and considerate opinion,, has reached the conclusion that the plaintiff had no foundation to stand upon, and has left the parties in the condition in which they deliberately placed themselves on February 6, 1886.
¶21We are not authorized to say that he has misconceived the facts and misapplied the law.
¶22Judgment affirmed.
¶23Justices Poche and Todd, not having heard the argument, take no part.