dissenting: I do not understand the facts of this case as do my associates. It seems to me that there was sufficient allegation in the complaint of an intention and agreement on the part of Mary IT. Webb (afterwards Mrs. Robert 8. Hay) to convey to James B. Webb an estate for life in the land, and whether legal or equitable can make no difference, in the-view I take of the law of the case. If, therefore, the substituted deed of 28 June, 1881, did not convey such an estate as the parties intended should pass to James B. Webb, and, as they distinctly allege, did pass by the original deed, why were not the plaintiffs entitled to establish the mistake, if they could do so by the requisite proof ? If the deed of 28 June, 1881, while intended to take the place of the one of 1869, which gave James B. Webb a life estate, failed, by reason of the mistake of the draftsman to convey a life estate to him, and there was a mutual mistake, as, I think, is sufficiently alleged in the complaint, though not very formally or with that precision so much to be desired in pleadings, it would seem that his Honor erred in excluding the evidence offered for the purpose of proving the fact. Can the mere circumstance that the plaintiffs have placed a wrong construction upon the deed of 1881, as the majority think they have, preclude their right to have it conformed to what was really the purpose in making it? The substance of the allegation, when properly considered, is — and that is what the plaintiffs really meant'— that the deed of 1881 did convey a life estate to James B. *201Webb; but if it did not, then tbat it should be corrected, so as to carry out tbe agreement of tbe parties in respect to tbat contemplated effect of tbe deed. Pleadings should not be construed too strictly, for narrow and technical interpretations often defeat justice. “In tbe construction of a pleading for tbe purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between tbe parties.” Eevisal, sec. 495. Tbe plaintiffs also allege tbat all of tbe successive purchasers bad full notice of their equity. Tbe defendants plead tbat they have bad twenty years’ adverse possession of tbe land and seven years’ adverse possession under color of title; but there is no plea of tbe statute especially addressed to plaintiffs’ equity for a correction of tbe deed — and if there were, I doubt if, under the facts and circumstances of this case, as they now appear, it should be allowed to avail the defendants.
I gave my concurrence to tbe decisions in Kirkman v. Holland, 139 N. C., 185, and Cameron v.' Hicks, 141 N. C., 21, most reluctantly, and only in deference to tbe prior decisions in King v. Rhew, 108 N. C., 696, and Clayton v. Rose, 87 N. C., 106, and the greater learning and wisdom of my brethren, because I believe tbe principle underlying those decisions is essentially wrong, and will work, if it has not already wrought, great injustice. I do not think tbat when a life tenant is ousted, even though he has only an equitable estate, tbe legal title being in a trustee for him, and tbe dis-seisin continues long enough to bar bis trustee, tbat persons entitled in remainder should be prejudiced by the inaction of tbe trustee, and there is eminent authority for this position. The bar should operate only against the estate of tbe life tenant, just as an estoppel is not permitted to extend beyond the estate of the person bound by it. James B. Webb died in August, 1901, and the life estate then fell in. This action was commenced in April, 1902, by tbe remaindermen, in full time for the assertion of their rights by the plaintiffs.
*202I am also of.tbe opinion that there was evidence tending to show that the proceedings for the sale of the land, which are attacked for fraud, irregularity and upon other grounds, were of such a character as not to obstruct the plaintiffs’ right to' equitable relief. But his Honor ruled out important and material evidence that plaintiffs proposed to introduce on the other branch of the case, and peremptorily decided that they could not recover. They were deprived in limine of the benefit of proof essential to their success, and finally denied the right to recover in any aspect of the case. This, in my judgment, was error. It would, perhaps, have been better to submit the case to the jury upon proper issues, so-that the facts might have been found. The jury may have found against the plaintiffs, but they should, at least, have had an opportunity to prove their case.or to develop it. No issues were framed, but the case was most manifestly tried upon the understanding that proper issues would be submitted when the evidence had' all been introduced. It does not seem to me, upon a review of the entire record, that the plaintiffs have had the full benefit of their legal rights, and, being of this opinion, I must dissent from the opinion of the majority, which I always do with extreme regret. My inclination always is to concur with them, not only because of their great learning and ability, but also because I well know with what anxious care and patient investigation they consider and decide cases coming before them. The principle herein applied goes beyond what has heretofore been decided, it seems to me.
I would enter more fully into the discussion of the principle-involved in King v. Rhew, Kirkman v. Holland and Cameron v. Hickes if it would not extend this opinion to an unreasonable length. I may undertake to express my views at length on that subject at some future and more opportune time.
I • agree with my brethren that this case bears no resemblance to Joyner v. Futrill, 136 N. C., 301, or Perry v. Hackney, 142 N. C., 368, and for that reason they were not cited.. *203In tbe former of those two cases the trust was a passive one, and was executed by the statute of uses, plainly and unmistakably, and, besides, it was clearly confined to the life estate. The remainder was devised, freed and discharged of the trust. In Perry v. Hackney the devise was made directly to Nancy Richardson, of the “use, benefit and profit” of the property in controversy. There was no intervention of a trustee, upon whom duties were conferred that created an active trust. She got the whole estate, because the language was capable of no other construction; and the rule in Shelley's case was held to apply, as the limitation then was “to the lawful heirs of her body” after her death. The statute of uses had no application, nor did the question presented in this case arise.