#### GEORGE W. HIGGINS and EVA HIGGINS GIBBS and Husband, H. C. GIBBS, v. GUY HIGGINS and Wife, CINDY HIGGINS, BOB (R. L.) HIGGINS and Wife, WINNIE HIGGINS, et al.

(Filed 13 October, 1937.)

1. Partition § 5—

Where defendants in partition proceedings filed answer pleading sole seizin, tbe proceeding becomes in effect an action of ejectment.

3. Same: Ejectment § 13 — In action to recover land plaintiff may attack deed set up in answer without allegation of its invalidity.

In this proceeding in partition defendants pleaded sole seizin, and alleged tbat tbe common ancestor under whom plaintiffs claimed had deeded tbe land to them prior to bis death. Plaintiffs introduced tbe deed in evidence for tbe purpose of attack, and offered evidence of mental incapacity of tbe grantor, which evidence was excluded because plaintiffs had not filed a reply alleging its invalidity. Held: Tbe exclusion of the evidence was erroneous, defendants having given notice in tbeir answer that they relied upon tbe deed in question to establish their title, and plaintiffs being entitled, therefore, to anticipate defendant by introducing the deed for the purpose of attack.

Appeal by tbe plaintiffs from Alley, J., at June Special T'erm, 1937, of YaNCEy. New trial.

Anglin' <& Randolph for plaintiffs, appellants.

G. D. Bailey and Charles Hutchins for defendants, appellees.

ScheNck, J.

This was a proceeding for partition of land, begun before tbe clerk. Two of tbe defendants pleaded sole seizin and tbe other .defendants filed no answer. Tbe case was then transferred to tbe court at term. Tbe proceeding thereby became in- effect an action of ejectment. Ditmore v. Rexford, 165 N. C., 620.

Tbe-plaintiffs alleged tbat J. N. Higgins died seized of a certain tract of land in Yancey County, leaving them and tbe defendants as bis heirs at law, and tbat they desired to bold tbeir interests in said land in severalty, and prayed tbat said lands be partitioned among tbe plaintiffs and defendants as tbeir severál interests appeared.

*220Tbe defendants Bob (R. L.) Higgins and bis wife, Winnie Higgins, filed answer and admitted that J. N. Higgins^had died and that the parties, plaintiffs and defendants, were his heirs at law, but denied that he was seized of the land at the time of his death, since he had conveyed the said land to them prior thereto by deed duly recorded 28 May, 1936, in Book 79, at pp. 89-90, Record of Deeds of Yancey County.

The plaintiffs introduced in evidence a deed from one Marinda Higgins to John (J. N.) Higgins covering the locus in quo, recorded 12 December, 1885, in Book 10, at p. 191, Record of Deeds for Yancey County, and then offered to introduce in evidence for the purpose of attack the deed from J. N. Higgins to R. L. Higgins and wife, Winnie Higgins, mentioned in the answer, stating that they proposed to show that J. N. Higgins at the time he signed said purported deed was without sufficient mental capacity to make a valid conveyance. Plaintiffs also offered to introduce in evidence testimony of certain witnesses tending to prove that J. N. Higgins was without mental capacity to make a valid conveyance at the time he signed the said purported deed. To the introduction in evidence of the purported deed and of the testimony attacking same the defendants objected, and the objections were sustained, and the plaintiffs reserved exceptions.

It appears in the record that the court predicated its ruling upon the fact that there was no reply filed by the plaintiffs containing any allegation upon which the contention of lack of mental capacity in the grantor in the deed from J. N. Higgins to R. L. Higgins and wife, Winnie Higgins, could be based. This ruling was erroneous.

The second syllabus of Fitzgerald v. Shelton, 95 N. C., 519, which properly interprets the opinion, reads: “In an action to recover land, it is competent for one party to show that a deed offered by the other, in support of his title, is void for want of capacity in the vendor, although such deed may have been specially set up in the pleadings and relied upon, and no formal reply thereto or notice of attack given before that trial.”

In the ejectment case of Alley v. Howell, 141 N. C., 113, wherein there was no allegation of lack of mental capacity, the Court said: “The judge properly admitted evidence upon the question of the mental capacity of Susan Ervin (the common source of title) to execute the deed, as that went .to the issue whether legal title had passed to the defendant, and evidence (if offered) of fraud in the factum would also have been competent. Mobley v. Griffin, 104 N. C., 112; Jones v. Cohen, 82 N. C., 80; Young v. Greenlee, ibid., 346.”

In Helms v. Green, 105 N. C., 251, it is said: “. . . In actions for the recovery of land, as in the old action of ejectment, any deed offered as a link in a chain of title is thereby exposed to attack for *221incapacity in tbe maker or because it was void under tbe statute of frauds, tbougb it may not have been mentioned in tbe pleadings. J ones v. Cohen, 82 N. C., 75; Fitzgerald v. Shelton, 95 N. C., 519.”

Tbe fact that tbe plaintiffs offered in evidence tbe deed in question for tbe purpose of attack, instead of waiting to make tbe attack wben tbe defendants bad offered it to prove tbeir title, makes no difference in principle. Tbe defendants bad given notice in tbeir answer that tbey relied upon tbe deed in question to establish tbeir title, and would therefore introduce it in evidence, and this notice enabled tbe plaintiffs to anticipate tbe defendants by introducing tbe deed for tbe purpose of attack.

For tbe errors assigned, tbe plaintiffs are entitled to a

New trial.