The plaintiffs claimed as heirs of Felix Fleming, who shortly before his death conveyed by deed a life estate in the land to his wife, Ailey Fleming, in 1841. After his death his widow married Holly Tew, and lived on the land more than thirty years, and then conveyed said land to the various defendants and those under whom they claim, (219) who are now in possession.
That Ailey Tew, formerly Ailey Fleming, died in 1894, and the plaintiffs became entitled to the possession of said land
The defendants admit being in possession, but deny the title of plaintiffs, they allege that they are not claiming and holding the land under Ailey Fleming, but under Holly Tew, and under Ailey Tew and her heirs, Hinton and John H. Tew, as the widow and children of said Holly Tew.
They also plead the statute of limitations as a second defense.
And for a third defense and counterclaim these defendants say: "That the deed of Felix Fleming to Ailey Fleming, his wife, of date 25 September, 1841, as set forth in the complaint as valid, and alleged by plaintiffs to convey an estate for the life of said Ailey, these defendants say that said deed was intended by the parties thereto to convey a fee simple, and the words of inheritance, to wit, and `her heirs,' were omitted by the mutual mistake and inadvertence of the parties thereto. Wherefore, these defendants pray that said deed be corrected and reformed, so that the same shall convey a fee simple estate, and that defendants be dismissed hence, and that they recover their costs, and for further relief."
The plaintiffs failed to reply to the counterclaim, and the defendants moved for judgment upon their counterclaim. The plaintiffs moved for leave to file a reply. The court being of opinion that the ends of justice would not be subserved by granting the motion to file a reply, refused the motion of plaintiffs as a matter of discretion, and granted the motion of defendants, the plaintiffs admitting in open court that they can not maintain this action if the deed from Felix Fleming to Ailey Fleming is corrected to convey a fee simple estate.
(220) The plaintiffs excepted and demurred ore tenus to the alleged counterclaim. Demurrer overruled, and the court adjudged that the deed be reformed by the addition of the words "and her heirs," after the name of Ailey Fleming, and that defendants go without day. Plaintiffs excepted and appealed. The verification of the answer filed 11 June, 1898, "The foregoing answer of the defendants is true of his own knowledge, except those matters stated on information and belief, and he believes those to be true," is a substantial compliance with section 258 of the Code. Cole v. Boyd,125 N.C. 496; Payne v. Boyd, ibid., 499; Phifer v. Insurance Company,123 N.C. 410. That section says the verification must be "in effect" as therein prescribed, and the cases cited hold that a verbal and literal following of the formula prescribed is not necessary.
The plaintiffs bring this action for the recovery of real estate as heirs at law of Felix Fleming, who conveyed it by deed to his wife, Ailey, in 1841, but without using the words "her heirs." She married, after the death of her said husband, one Holly Tew, and the complaint avers that the defendants are holding under mesne conveyances from Ailey Tew, the grantee of the life estate aforesaid, who died in 1895. The original action in this cause was instituted in 1895, and, having terminated by a nonsuit, this action was begun within one year thereafter. The answer denies that the defendants hold under Ailey Tew, but avers that they hold under Holly Tew, by conveyances from his widow and children, and plead the statute of limitations.
For further defense the defendants allege that the said deed (221) from Felix Fleming to Ailey Fleming, which the plaintiffs allege conveyed only a life estate to Ailey, was intended by the parties thereto to convey a fee simple, that the words "her heirs" were omitted by mutual mistake and inadvertence of the parties thereto, and ask for a correction and reformation of the deed to convey a fee simple.
The defendants had a right to plead inconsistent defenses if separately stated, as was here done. Clark's Code, sec. 245 (3 Ed.), and cases cited. It was also competent in order to avoid multiplicity of suits to ask for the correction of the deed in the answer, for the defendants could not, as under the former system of pleading, have obtained an injunction against proceedings at law to recover the realty until the termination of their own proceedings in equity for the correction of the deed. The plaintiff filed no reply to the allegation of grounds for a decree for reformation of the deed, and his Honor gave judgment by default. The plaintiffs contend that this was error upon the ground that this was not a counterclaim because the defendants could not have maintained an independent action therefor, which is the test between a matter of defense which requires no reply (Code, sec. 268) and a counterclaim. Askew v. Koonce, 118 N.C. 526. Since chapter 6, Laws 1893, however, the defendants, though in possession, could have brought such action to remove a cloud upon the title, and it is therefore a valid counterclaim, and not a mere matter of defense, as it would have been theretofore, but the judgment by default is erroneous for a different *Page 130 reason. Now, by virtue of the constitutional provision (Art. X, sec. 6), it is held that a deed from the husband to the wife is valid. Walker v.Long, 109 N.C. 510, which has been followed in Fort v. Allen,110 N.C. 183, and Sydnor v. Boyd, 119 N.C. 481, and cases there cited. But under the law governing the property rights of married women, (222) as it existed in 1841, the conveyance, if it had been executed as a fee simple deed to the wife, would have been void at law, and sustainable in equity only upon meritorious consideration. Warlick v.White, 86 N.C. 139. The court of equity would not correct a deed to insert the word "heirs," though omitted by inadvertence of the draftsman or by mutual mistake, unless the deed is supported by a meritorious consideration. Powell v. Morisey, 98 N.C. 426, and cases there cited. The answer contains no averment of meritorious consideration, and the material relation would per se be a meritorious consideration only for the wife's maintenance, i. e., for the life estate actually conveyed, and would not, no other consideration appearing, authorize the correction of the deed into a fee simple. Taking the answer in this respect to be true because undenied by a reply, it did not authorize the judgment rendered by default for correction of the deed.
Error.
Cited: Campbell v. Cronly, 150 N.C. 466; Williams v. Hutton,164 N.C. 223; White v. Gwynn, 168 N.C. 434.
(223)