Lewis v. Pate

CONNOR, J. The issue tendered by the defendants at the trial of this action arises on the pleadings. There was evidence elicited by the defendants on their cross-examination of the grantor in the deed referred to in the complaint, tor,wit, S. W. McIntosh, tending to sustain the affirmative of the issue. For these reasons there was error in the refusal of the court to submit the issue tendered by the defendants, for which the defendants are entitled to a new trial. See McIntosh N. C. Prac. & Proc., page 545, and cases cited in the notes. In the absence of the issue, the defendants were deprived of an opportunity to offer evidence in support of their prayer for affirmative relief in this action. When the action is called for trial in the Superior Court, the plaintiff, if he is so advised, may tender an issue arising upon his allegation, which is denied in the answer, that the alteration in the deed was made by the defendant J. R. Pate with the purpose to cheat and defraud his creditors. An affirmative answer to such issue will be pertinent to the right of the defendants to equitable relief as prayed by them in their answer. See Respass v. Jones, 102 N. C., 5, 8 S. E., 770. The grantors in the deed which both parties to this action seek to have reformed are proper, if not necessary, parties to this action. See Sills v. Ford, 171 N. C., 733, 88 S. E., 636; Moore v. Moore, 151 N. C., [515] 555, 66 S. E., 598. If either of the parties desires to have said grantors made parties to the action, before a new trial, they may by proper motion in the Superior Court have an order entered to this effect. For the error in the refusal of the court to submit the issue tendered by the defendants, the defendants are entitled to a new trial. It is so ordered. New trial.