Buchanan v. Harrington.

*41 Walker, J., after stating tbe case: Tbe parties seem to bare conceded that tbe proper construction of tbe deed from tbe petitioners to tbe defendant is in accordance witb tbe defendant’s contention, that it conveyed one-balf of the entire interest in tbe land, and tbe words, “tbe same ¡being tbe lands of Virginia, Willie and Garner Watson, deeded to L. B. Buchanan,” are merely descriptive of tbe land and cannot have tbe effect to limit or cut down tbe interest which would otherwise pass by the deed, and this we think was a proper concession. Indeed, tbe very words we have quoted import that tbe entire interest in tbe land ¡belonged to tbe three grantors named in the deed, rather than the contrary. If it be suggested that tbe feme petitioner did not, at the time she conveyed, own tbe entire estate, but only three-fourths, tbe answer is that tbe law will not permit this to change tbe construction of tbe deed as it is written. Matter dehors cannot, under tbe circumstances of this case, be considered for any such purpose. If tbe deed was sufficient in form to convey one-balf of the whole interest, tbe one-fourth interest after-wards acquired by tbe feme plaintiff from Bessie Watson would, by way of estoppel or rebutter, enure to tbe use and benefit of tbe defendant and thereby vest one-balf of tbe entire estate in him. Taylor v. Shufford, 11 N. C., at p. 127 (opinion of Judge Henderson); Hallyburton v. Slagle, 132 N. C., 947; Carter v. White, 134, N. C., 466; Wool v. Fleetwood, 136 N. C., 467. Tbe proposed testimony of tbe witness Campbell was properly ruled out. It was necessarily offered on tbe theory that tbe deed of tbe petitioners to tbe defendant passed one-balf of tbe entire interest in tbe land, and that it was necessary to correct it in order that it should speak tbe truth or conform to the real agreement and intention of tbe parties. Tbe evidence could have been relevant to tbe controversy upon no other ground. But tbe pleadings do not raise any issue to which it was pertinent. If tbe petitioners desired *42 to have tbe deed reformed, relying upon their rig’ht to the equity of correction, this matter should have been set up by proper averment and a corresponding issue submitted to the jury. They cannot be heard upon such a matter under the general allegations of their pleading, they merely alleging the ownership of five-eighths. If a party demands equitable relief, he must specially allege the facts upon which he seeks the aid of the court in the exercise of its equitable jurisdiction. Farmer v. Daniel, 82 N. C., 152; McLaurin v. Cronly, 90 N. C., 50; Bodenhamer v. Welch, 89 N. C., 78; Tuttle v. Harrill, 85 N. C., 456. If the petitioners had alleged the mutual mistake and prayed for a correction of the deed, so v as to show that it passed only a three-eighths interest, the testimony offered by them might have been competent. Such equitable matter might have been alleged by amendment in the Superior Court after the case had' been transferred, though it was not originally cognizable by the clerk before whom the proceeding was commenced. Roseman v. Roseman, 127 N. C., 497; Ewbank v. Turner, 134 N. C. 80, and cases cited. In the present state of the pleadings the case was in all respects correctly tried. No Error.