We have been unable to discover any such defects in the petition in this case as would render it obnoxious under a general demurrer. It clearly sets up a conditional exchange of two tracts of land, namely, the homestead of the plaintiff for that of John C. Smedley and wife, and most emphatically and specifically charges a total failure in the performance of the conditions on the part of Smedley and wife, and a knowledge on the part of defendant who was in possession of the land exchanged by plaintiff to the wife of Smedley. He claimed that by reason of such failure he was no longer bound by his agreement to exchange; and prays an order of the court restoring to him the possession of his homestead.

We think the petition sets forth a good and sufficient cause of action, with sufficient particularity and certainty to entitle the party to his action. Nor do we think the petition of Mrs. Fleming to intervene, for the purpose of protecting her homestead rights, demurrable, as she *529clearly sets up the fact that the land in controversy was her homestead, and that she had never parted with her homestead rights in the same, under the forms prescribed by law; that she had never acquired any other homestead ; and she asks the interposition of the court in her behalf. We are clearly of the opinion that she had a right to be heard, and, if her allegations proved to be true, a right to a judgment of the court in accordance with her prayer.

The exceptions taken to the ruling of the court in rejecting evidence are not well taken, for the reason that if the rejected testimony had been admitted by the court to go to the jury, it would have been wholly immaterial to the issues presented. At the time of the sale by Mrs. Smedley to Joplin, he knew she had no title; for there was none upon record, and he asked and received only a bond for title when she could make one; besides, he required personal security for the re-payment of the purchase money, in case she failed to make a title. With these facts before the court, he was estopped from claiming to be an innocent purchaser; and his testimony to that effect could only tend to confuse the jury, when it could in no way change the law of the case. Nor was the testimony in regard to what John C. Smedley might have said, after his return from the war, in 1865, at all material. It was not claimed that he had ever executed a title to Fleming, nor offered to execute one, in compliance with the agreement of his wife ; on the contrary, it was positively proven that he had failed and refused to execute a deed during his life, and that his death made the execution of a deed impossible. It was, therefore, wholly immaterial what he may have said in 1865; and it was not error in the court in ruling out such testimony from the jury.

The charge of the court clearly sets forth the law of the *530case, and all the law which was necessary in order to a proper determination of the rights of the parties.

The verdict of the jury was in strict conformity with the law as given, and the facts proven on the trial; and therefore the court did not err in overruling the motion for a new trial, and the judgment is affirmed.

Affirmed.