#### W. B. WEBSTER et al. v. T. E. WILLIAMS et al.

(Filed 26 October, 1910.)

Pleadings — Amendment—Cloud on Title — Nonsuit—Issue.

In a proceeding for partition of land, plaintiffs, by inadvertence in describing tbe land, included two acres in which they claimed no interest. The Court, without objection, allowed an amendment expressly excluding that part of the land from the description. Appellant, served with process only in behalf of his children who lived with him, filed an answer asserting title in himself to the two acres and asking that plaintiff’s claim, which was a cloud upon his title, be removed. Held, proper to refuse the submission of an issue based upon the averment of the answer after the amendment had been made without objection, which left the appellant without any basis for his alleged counterclaim, he not claiming any interest in the remainder of the land. Held f urther, that the amendment was not in the nature of a nonsuit, but was intended to remove vagueness from the description of the land.

Appeal from O. H. Allen, J., at the July Term, 1910, of Lee.

The facts are stated in the opinion of the Court.

H. F. Seawell and D. F. Mclvér for plaintiffs.

Hoyle & Hoyle for defendant Williams.

Walker, J.

This is a proceeding for the partition of lands, commenced before the clerk and transferred to the Superior Court for trial. The petitioners allege that they are tenants in *310common with, the defendants of two tracts of land, one of which is known as the Colon tract or home tract of R. B. Webster. The interests of the respective parties are therein set forth, but the name of T. E. Williams does not appear among the parties, though his children, Bertha and Annie Williams, are mentioned, and it is alleged that they are minors and reside with their father. This would tend to show that he was made a party, not, it seems, as their guardian, but merely because they lived with him. Why this was done, we do not know. At all events, it appears that the petitioners did not make him a party because he had any personal interest in the land as tenant in common or otherwise. He is neither a necessary nor proper party. His name was inserted in the summons, perhaps, under the mistaken notion that, as by Revisal, sec. 440 (2), a copy of the summons is required to be left with the father, if living within the State, and if his infant child, who is a party, is under the age of 14 years, it is necessary that the summons should be directed to him. There was no intention, in this case, of making T. E. Williams a party for the purpose of requiring him to defend any personal interest he may have claimed in the land. He filed an answer in his own behalf, in which he alleges that, as to the two acres of land known as the home tract of R. JB. Webster, he is the owner and is sole seised thereof, by virtue of a deed made by R. B. Webster and his wife to him, in the year 1898; that the said deed was destroyed by fire and he then alleges, on information and belief, that the petitioners and his 'co-defendants claim an interest therein. He prays that he be declared the owner in fee simple of the said two acres. The relief he asks is, according to the argument of his counsel, that the cloud arising from the. loss of his deed and the claim of the other parties, be removed from his title. The court, on motion of the petitioners, permitted them to amend the petition by excluding the two acres, described in the defendant’s answer, from the description of the land as contained in their petition. The motion was allowed without objection. The defendant, T. E. Williams, asked the court to submit to a jury the issues raised by his answer, which request was refused and the cause remanded to the clerk to proceed therein with the partition of the land, except the two *311acres. Tbe defendant, T. E. Williams, excepted and appealed. He now contends tbat bis defense can be set up in tbis proceeding under Acts of 1903, cb. 566 (Revisal, sec. 717), wbicb changes tbe principle as stated in Vance v. Vance, 118 N. C., 864. Conceding tbis to be so, for tbe sake of argument, we still do not see any error in tbe ruling of tbe Court. It is true, as a general rule and as argued by defendant’s counsel, tbat a plaintiff cannot, by submitting to a nonsuit, or by any action equivalent thereto, deprive a defendant of tbe right to be beard upon a counterclaim affecting said plaintiff adversely, but we do not think tbe plaintiff either submitted to a nonsuit or abandoned tbe prosecution of bis cause of action, or any part thereof, and tbe case, therefore, is not governed by tbe authorities cited in tbe defendant’s brief. Bynum v. Powe, 97 N. C., 374; Gatewood v. Leak, 99 N. C., 363; Wilkins v. Suttle, 114 N. C., 550; Pell’s Revisal, sec. 481, and notes. Tbe amendment was allowed to correct a mistake of tbe plaintiffs in tbe description of tbe land alleged to be held by tbe parties' in common. They bad inadvertently so described tbe land as being tbe borne tract wbicb bad descended from R. B. Webster to bis heirs, without expressly excepting tbe two acres wbicb, it is alleged, bad been conveyed to T. E. Williams by R. B. Webster, and thereby left it uncertain whether they referred in their petition to tbe original home tract or to so much thereof as bad descended to tbe heirs; or, in other words, to tbe home tract as it was when R. B. Webster died. If tbe two acres were not a part of tbe borne tract at tbe time of R. B. Webster’s death, they did not descend and were not, therefore, embraced by tbe description; otherwise they were. It was to make tbe description clear in tbis respect and to remove its vagueness tbat tbe amendment was allowed, and we think properly so. Tbe amendment did not withdraw tbe two acres from tbe description, but was merely for tbe purpose of showing tbat it was not intended to be included in tbe description. Tbe counterclaim or defense was not, therefore, “a cause of action arising out of tbe contract or transaction set forth in tbe complaint as tbe foundation of tbe plaintiff’s claim, or connected with tbe subject of tbe action.” Revisal, sec. 481. Tbe defendant, T. E. Williams, it appears, has no interest in tbe *312other part of the land. If be has; bis share will be allotted to him in the division. He may bring an independent action and assert the rights now claimed in his. answer, if so advised.

No error.