#### BUCHANAN v. HARRINGTON.

(Filed April 3, 1906).

Deeds — Estoppel—After-acquired Interest — Partition—Reformation and Correction — Pleadings—Amendments.

1. Where a deed was sufficient in form to convey the grantor’s whole interest, an one-fourth interest afterwards acquired by the grantor will, by way of estoppel or'rebutter, enure to the use and benefit of the grantee and thereby vest the entire estate in him.

2. In a proceeding for partition of land, where the petitioner merely alleged the ownership of five-eighths, evidence tending to show a mutual mistake in the deed under which defendant claimed, was properly excluded.

3. 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.

4. In a proceeding for partition, the petitioner might have alleged mutual mistake, 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.

Special proceeding -for partition by J. 33. Buchanan and others against A. B. Harrington, heard by Judge G. 8. Ferguson and a jury, at the December Term, 1905, of the Superior Court of Moore.

The petitioners allege that they are tenants in common with the defendant of a tract of land containing 24 acres, they owning five-eighths thereof and the defendant the other three-eighths. The defendant admitted the tenancy in common, but denied the allegation as to the interest of the respective parties, alleging on the contrary that the petitioners owned one-half and he the other half. The land formerly belonged to W. B. Watson, and at his death descended to his four children, Virginia, Willie, Garner and Bessie Watson. *40The first three for the consideration of $150 conveyed the land (not stating their interest therein) to the feme plaintiff on October 25, 1901, with full covenants of seizin and warranty. There is nothing in the deed to indicate that they did not have the entire estate in the land. On March 11, 1902, the plaintiffs conveyed a one-half interest in the land to the defendant, describing it as “containing 24 acres more or less, ahd adjoining the lands of L. Aeree and others, the same being the lands of Virginia Watson, Willie Watson and Garner Watson, heirs of W. B. Watson; deceased, deeded to L. B. Buchanan on the 25th day of October, 1901.” It appears further that on the 14th March, 1903, Bessie Watson, for the consideration of $37.50, conveyed her one-fourth interest in the land to the feme plaintiff. Issues as to the interests of the respective parties were submitted to the jury, who found for the defendant that he owned a one-half interest in the land. At the trial, the plaintiffs proposed to ask the witness, T. N. Campbell, “what land was the deed (to the defendant) intended to convey?” it being- the purpose to show by the witness that it was intended to convey one-half of the interest which they alleged that they then had, that is, three-eighths and not one-half of the whole. The plaintiffs then proposed to prove by the witness that it was understood and agreed by the parties, at the time the deed was executed, that the petitioners were selling only one-half of three-fourths, and the defendant was buying one-half of three-fourths. All of this proposed evidence was excluded and the petitioners excepted.

The court charged the jury that if they believed the evidence -they should answer the first issue, as to the feme petitioner’s interest, one-half; and the second issue, as to the defendant’s interest, one-half, which they did. Judgment was entered accordingly and the petitioners appealed.

W. E. Murchison for the petitioners. .

Seawell & McIver and W. J. Adams for the defendant.

*41Walker, 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 *42to 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.