#### L. D. BRYAN v. D. R. CANADY et als.

(Filed 13 October, 1915.)

1. Deeds and Conveyances — Pleadings — Equity — Specific Performance — Decrees.

Where in an action to enforce specific performance of an option on land it appears from the pleadings and admissions of the parties that the defendant bad agreed to include within the terms of the option a certain other tract of land, which was omitted by their mutual mistake, that the entire consideration had been paid, including the execution of notes for the deferred payments to be made on the purchase price of the lands, with mortgage to secure their payment, it is held that a decree was properly entered in the court below that the vendor convey to the purchaser the tract thus omitted, and that the latter should execute a mortgage thereon as further security for the notes given for the purchase price; and in default thereof the decree should be registered as a conveyance in accordance with the provisions of the statute.

2. Deeds and Conveyances — Pleadings—Equity—Specific Performance — Allegations — Prayers for Relief — Issues.

In a suit for specific performance of an option to convey land, the complaint alleging an omission by mutual mistake of the parties of one of *580the several tracts intended to be conveyed by the option, which the answer denied: Held, that the issue thus raised was subsequently rendered immaterial by the defendant admitting in open court that he had executed the option alleged, and that it included the tract in question, which had not been described in the conveyance.

8. Pleadings — -Amendments—Prayers for Relief — Judgment—Presumption.

Where an amended complaint has been allowed in the Superior Court' and filed, and asks for no relief except by reference to the original complaint, which is not sent up in the record on defendant’s appeal, it will be assumed that the prayer corresponded with the facts stated and was suited to the relief granted, if a prayer was essential.

4. Same — Record—Appeal and Error — Absence of Prayers for Relief.

The relief to be granted in an action does not depend upon that asked for in the complaint; but upon whether the matters alleged' and proved entitle the complaining party to the relief granted, and this is so, in the absence of any prayer for relief.

5. Pleadings — Issues—Matters Alleged — Specific Performance — Separate Conveyances — Equity—Reformation.

Where the purpose of the suit, as it appears from the matters alleged in the complaint, was to call for a separate deed to a tract of land omitted by the mutual mistake of the parties from the conveyance made in carrying out an option of purchase thereof, and it is the evident intention of the plaintiff, as gathered from the complaint, not to have the deed reformed, but to compel a conveyance of the tract omitted, an issue involving the right of the plaintiff for reformation of the deed does not arise on the pleadings.

Appeal by defendants from Connor, J., at tbe July Term, 1915, of ONSLOW.

Tbe action was brought for tbe specific performance of an “option” by whicb defendants agreed for a valuable consideration, to convey five tracts of land to tbe plaintiff. An attorney was retained to draw tbe deed, and by an inadvertence not attributable to bim, but to tbe mutual mistake of tbe parties themselves, as alleged, one of tbe tracts, viz., tbe fifth tract described in tbe contract, was omitted from tbe deed. When this was discovered by tbe plaintiff, before tbe expiration of tbe time fixed by tbe option to call for a conveyance of tbe land, plaintiff requested defendants to execute to bim a deed for tbe fifth tract, offering at tbe time to give a mortgage on tbe same as further security for tbe payment of tbe purchase money, as bad been done in tbe case of tbe first four of tbe tracts at tbe time of tbe conveyance of them to bim, but with this reasonable demand tbe defendants refused to comply.

Defendants, in their answer, denied that they agreed to sell tbe fifth tract of land to tbe plaintiff or that it was omitted from tbe deed they made to tbe plaintiff for tbe other four tracts, by tbe mutual mistake of tbe parties, but at tbe trial admitted that they executed what is called tbe “option” set out in tbe second section of tbe complaint, which describes tbe land as “all tbe real estate belonging to tbe defendants and *581situated in Onslow County, in Stump Sound Township, on tbe west side of New Eiver, including tbe entire possession of tbe said defendants and all tbe lands and oyster bottoms or gardens of every description.” It was further admitted that tbe fifth tract was embraced by tbe description in tbe “option,” and that “tbe entire consideration set forth in tbe option bad been paid, including tbe execution of tbe notes for $6,500 and a mortgage on tbe land to secure their payment.” Upon tbe pleadings and these admissions, it appearing that tbe deed of tbe defendants did not include, in its description of tbe land, tbe fifth tract, tbe court adjudged that tbe defendants execute a proper deed to tbe plaintiff for that tract, at Snead’s Ferry Point, with general warranty, according to tbe terms of tbe option, and that plaintiff, on receipt of tbe said deed, or tbe registration of tbe same, execute to tbe defendants an additional mortgage ,on said tract of land, so that tbe notes for $6,500 shall then be secured by a lien, by way of mortgage, on all tbe tracts, as provided by tbe option, and in case tbe defendants fail or refuse to comply with this judgment in tbe respect indicated above, that tbe decree shall operate as a conveyance, with general warranty from defendants to tbe plaintiff of said fifth tract of land, and as a mortgage back to tbe defendants of tbe same, as additional security in accordance with tbe foregoing terms of tbe judgment. Provision was made in tbe decree for tbe clerk to certify tbe same to tbe register of deeds, as provided by tbe statute. Tbe court further adjudged that plaintiffs are entitled to- tbe possession of tbe land at Snead’s Ferry Point, which is tract No. 5, and that a writ of possession be issued by tbe clerk of tbe court, at tbe request of plaintiff, and that be recover bis costs. Defendants excepted and appealed.

W. II. Lee, D. B. Henderson, N. B. Day, and McLecm, Varser & McLean for plaintiff.

Helium & Loughlvn, and Herbert McClammy for defendants.

'Walker, J.,

after stating tbe case: Tbe defendants contended that, by their answer, they bad raised an issue as to whether tbe fifth tract of land bad been omitted from tbe description in tbe deed by tbe mutual mistake of tbe parties, and also as to whether that tract was included by tbe description of tbe lands in tbe option. It was not described separately by its name, but was a part of tbe lands answering to the general description in tbe deed. So that tbe issue raised by tbe answer was waived or rendered immaterial by tbe subsequent admission, in open court, that defendants executed tbe contract and that it covered all five tracts, four of which bad already been conveyed to plaintiff. • Tbe defendants further urged that tbe suit was brought to correct tbe deed on the ground of mistake, and they bad denied that there was any mistake, but this contention is founded on a misconception of tbe complaint, *582which sets out a cause of action, not for reformation of the deed, but for the specific enforcement of the agreement to sell the land, which had only been partially performed by a conveyance of four of the tracts. There is no specific prayer in the amended complaint, and no prayer at all, except by reference to the former complaint, the prayer of which is adopted, but that complaint was not sent up as a part of the record, though it is referred to as a part thereof. We must assume, though, that the prayer corresponded with the facts stated and was suited to the relief which they entitled plaintiff to have adjudged.

Where an answer, is filed, “the court may grant any relief consistent with the case made by the complaint, and embraced within the issue.” Revisal, sec. 565. So that the relief awarded depends not upon the particular form of the prayer, but is gauged by the facts stated in the pleading, and the party is entitled broadly to any relief consistent therewith, whether or not he has prayed for it. Knight v. Houghtalling, 85 N. C., 17. As the nature and extent of this rule, which obtained under the former equity system, and has been introduced into our present liberal procedure, do not seem to be well understood, it may be profitable to refer to a few of the cases in which it has been stated and administered. Discussing it in Staton v. Well, 137 N. C., 36, 42, Justice Douglas said: “This Court has repeatedly held that no prayer is necessary where the appropriate relief sufficiently appears from the allegations of the complaint. In Knight v. Houghtalling, 85 N. C., 17, Ruffin, J., speaking for the Court, says: ‘We have not failed to observe that the answer of the defendants contains but a single prayer for relief, and that for a rescission of a contract. But we understand that under the Code system the demand for relief is made wholly immaterial, and that it is the case made by the pleadings and facts proved, and not the prayer of the party, which determines the measure of relief to be administered, the pnly restriction being that the relief given must not be inconsistent with the pleadings and proofs. In other words, the court has adopted the old equity practice, when granting relief under a general prayer, except that now no general prayer need be expressed, but is always implied.’ In Dempsey v. Rhodes, 93 N. C., 120, Merrimon, J., speaking for the Court, says: ‘Indeed, in the absence of any formal demand for judgment, the court will grant such judgment as the party may be entitled to have, consistent with the pleadings and proofs.’ See, also, Harris v. Sneeden, 104 N. C., 369; Gottis v. Kilgo, 125 N. C., 133; Clark’s Code, see. 233 (3).” And in Voorhees v. Porter, 134 N. C., 591, 597, we said, referring to the language of the Court in Woodcock v. Bostic, 118 N. C., 822, and explaining it: “When the Court said in that case, “She cannot have equitable relief, because she has prayed for none,’ it simply meant that there was no sufficient allegation of an equity upon which a prayer for such relief could be predicated, for we find it to be well settled by the *583decisions of this Court that if the plaintiff in his complaint states facts sufficient to entitle him to any relief, this Court will grant it, though there may be no formal prayer corresponding with the allegations, and even though relief of another kind may be demanded. Knight v. Houghtalling, supra; Gillam v. Insurance Co., 121 N. C., 369. In the case last cited, Clark, J., for the Court, says: ‘Under the -Code the demand for relief is immaterial, and the Court will give any judgment justified by the pleadings and proofs,’ citing numerous cases. Clark’s Code (3 Ed.), p. 584, and notes to section 425.” More recent cases are Councill v. Bailey, 154 N. C., 54; Williams v. Railroad Co., 144 N. C., 498; Cedar Works v. Lumber Co., 161 N. C., 612; Baber v. Hanie, 163 N. C., 588, 590.

The last case cited is very much like this one, the only difference being that in the one there was an equity of subrogation, while in the other there is an equity for correction of a deed. We there said: “The court should not have ordered an amendment of the original complaint. It was quite sufficient, in its allegations, to warrant a recovery upon the theory of subrogation or that of contract. The prayer does not narrow the scope of the pleading to its own limits, but a party can recover now according to the facts he states i*n his pleading, and not necessarily or only according to his prayer.”

In Knight v. Houghtalling, supra, the prayer was for rescission of the deed, but while the court refused that equity, it, nevertheless, awarded another kind of relief, and one very different from that which was asked for. As the defendants admitted facts which entitled the plaintiff to a full enforcement of the contract by a conveyance of the fifth tract of land, they cannot now be heard to say that their answer raised an issue as to the facts admitted, and, therefore, should have been referred to the jury. What is admitted need not be proved. But if the admission had not been made, it is perfectly manifest that the defendants would have lost in the end, as the description in the option was broad enough to take in the fifth tract with the others, entitling the plaintiff to a specific performance of the same in its entirety, and this could as well be done by an independent conveyance of the fifth tract as by a correction of the deed, so that the issue, as to the- mistake, was immaterial in any view. Nor do we think that the complaint, and answer, when properly construed, raised any such issue, as it was the evident purpose of the plaintiff not to have the deed reformed, but to call for a separate deed for the fifth tract to complete the performance of the defendants’ contract with him. The mistake in the deed was mentioned incidentally to indicate that the defendants’ deed had fallen short of a full performance of the option.

We see no error in the judgment, and, therefore, affirm it.

Affirmed.