#### CATHERINE E. WOOD and JOHN R. HEMPHILL, Original Parties Plaintiff, and J. G. FORD, Intervener, Additional Party Plaintiff, v. RICHARD P. WILDER, EDWARD H. WILDER, WILLIAM R. WILDER, W. B. FERGUSON, Administrator of the Estate of W. D. WILDER, Deceased, and OTHENA HERRON.

(Filed 3 March, 1943.)

1. Partition § 10: Tenants in Common § 3: Husband and Wife § 11—

An exchange of deeds by tenants in common, where the purpose is clearly partition, does not create or confer upon the parties any additional, or new, or different title, and each party to the partition holds precisely the same title he had before the partition, which only severs the unity of possession. Where a husband, in such a partition, is made a joint grantee with his wife he acquires no title.

*6232. Pleadings § 15: Appeal and Error § 37a—

While the general rule does not allow a party to adopt, in the Supreme Court, a different theory from that upon which he tried his case below, the rule has no application on demurrer based upon an alleged failure of the complaint to state a cause of action.

3. Pleadings § 15—

A demurrer admits every factual averment in the complaint and all reasonable inferences therefrom.

Appeal by plaintiffs from Sink, Jat August Term, 1942, of BtjN-combe.

Reversed.

Tbe plaintiffs described their suit as an action to remove a cloud from their title, but it may be construed and treated as an action in ejectment. It is here upon appeal from a successful demurrer to the complaint made ore tenus as not stating a cause of action.

Substantially, the complaint sets up the following facts, in which is . incorporated a history of the plaintiffs’ alleged title:

John R. Hemphill died intestate 15 June, 1889, the owner in fee of a tract of land containing one hundred and twenty-five acres, situated in Buncombe County. He left surviving him, as his heirs at law, five children: John R. Hemphill, T. C. Hemphill, Catherine E. Wood, Mary C. Ballard and Othena Herron. It is alleged that Othena Herron, because of previous advancements received by her by conveyance of other lands, laid no claim to any part of the one hundred and twenty-five acre tract and was, therefore, not considered in the partition of the land subsequently made. The amended pleadings, however, set up as an independent allegation that Othena Herron is, by reason of the said advancement, not entitled to any portion of the lands in controversy.

The other four children held the lands as tenants in common until 3 October, 1901, when they agreed to partition the lands and thereafter hold their shares in severalty. In pursuance of this, agreement they divided the lands into four parts, agreed upon the allotments, and consummated the partition by deeds. The precise mode adopted was peculiar ; each of the four received a deed to his or her share, executed by the other three. It is stated in the complaint that the forms of the deeds are similar. When, however, they came to the share of Mary 0. Ballard, the lands here in controversy, the other three heirs and cotenants named executed and delivered a deed thereto to the said Mary C. Ballard and her husband, R. S. Ballard, in the form of a conveyance in fee, with covenants and warranties of title and citing a consideration of $200.00. The plaintiffs allege that R. S. Ballard was made one of the grantees through error.

*624Mrs. Ballard died 28 January, 1930, intestate and leaving no children; none were born of the marriage with R. S. Ballard. It is stated in plaintiffs’ pleadings that after the death of his wife, R. S. Ballard attempted to convey the lands to his nephew, W. D. Wilder, without consideration.

While the parties were impleading each other and after answer had been made to the complaint, the defendants made a motion to render judgment against the plaintiffs Catherine E. Wood and John R. Hemp-hill on the grounds of alleged “admissions and allegations not denied” which would estop the plaintiffs by their record from maintaining this cause. It is not stated in this motion what these admissions and allegations are. The motion was denied, and thereafter the plaintiffs were permitted by order of court to file an amended complaint, in which substantially the foregoing allegations were reiterated and additional matter was inserted intending to exclude any rights which Othena Herron might have had and pleading advancements made to her.

Thereupon, the defendants demurred ore terms for that the complaint failed to state a cause of action, and the demurrer was sustained. From this order plaintiffs appealed, assigning error.

T. B. Galloway for plaintiffs, 'appellants.

B. L. Loftin for defendants, appellees.

Seawell, J.

The allegations of the complaint do not permit us — -at least for the purpose of this review — to regard the deed made to Mary Ballard and her husband as a separate, detached transaction, and to draw certain inferences from its form which, without attending circumstances, might defeat the action and sustain the demurrer. The plaintiffs allege that at the time this deed was made there were other deeds of similar purport and purpose executed and exchanged between the parties as a part of the same transaction — a transaction which, as they allege, explains and characterizes the deed under consideration.

It is alleged that the lands to which these deeds refer were component parts of a tract of land inherited from the deceased father and held in common. It is further alleged that the tenants in common had agreed to divide the land by voluntary partition, and had determined upon the moiety which each was to receive, and that the sole purpose of these deeds, including the Ballard deed, was to make effectual this partition, and set apart the parcel which each of the tenants in common might thereafter hold and enjoy in severalty. They contend, therefore, that the deeds should be construed together in the light of the attendant circumstances and the purpose for which they were made and exchanged. Millard v. Smathers, 175 N. C., 56, 94 S. E., 1045; Jelly v. LaMar, 242 Mo., 44, 145 S. W., 799; Casstevens v. Casstevens, 227 Ill., 547, *625 81 N. E., 709; 118 American State Reports, 291; 40 Am. Jur., p. 15,. sec. 17; 47 C. J., 274, sec. [19] 2.

Upon tbe alleged facts of tbe complaint, tbe case falls witbin tbe principle expressed in Sprinkle v. Spainhour, 149 N. C., 223, 62 S. E., 910, and Speas v. Woodhouse, 162 N. C., 66, 77 S. E., 1000; Jelly v. LaMar, supra. Speaking to tbe question in Sprinkle’s case, supra, and construing a deed similar in form and made under like circumstances, Brown, J., said:

> “Assuming for tbe sake of tbe argument tbat tbis particular deed, under tbe circumstances attending it, bad conveyed an estate in fee to busband and wife, botb, tbe busband and those claiming as bis beirs would not be permitted to set up a claim to tbe land. It descended to S. E. Y. Sprinkle from ber ancestor, and tbis partition deed was made during ber coverture. At tbe date of its execution tbe land belonged to ber separate estate. It is one of tbe essentials of tbe peculiar estate by entireties sometimes enjoyed by busband and wife, tbat tbe spouses be jointly entitled as well as jointly named in tbe deed. Hence if tbe wife alone be entitled to a conveyance, and it is made to ber and ber busband jointly, tbe latter will not be allowed to retain tbe whole by survivorship. And it matters not if tbe conveyance is so made at ber request, because being a married woman she is presumed to have acted under tbe coercion of ber busband. Moore v. Moore, 12 B. Mon., 664; Babbitt v. Scroggins, 1 Duval, 273; Gillan v. Dixon, 65 Pa. St., 395, all cited in 18 Am. Dec., 383, 384.”

If Mrs. Ballard already held title to tbe parcel which she received in the division by inheritance from ber father — and tbat, as we have seen, is tbe allegation — the deed of tbe cotenants to ber and ber busband made under tbe circumstances alleged could not have tbe effect of creating an estate by entirety, since tbe grantees, busband and wife, are not jointly entitled, and tbe busband would not be entitled to bold on tbe theory of survivorship. Moreover, there is no conveyance by tbe wife to tbe bus-band of tbe interest thus held; and, therefore, be got no title by tbe deed of tbe eotenants without ber joinder. Tbis defect of title would, of course, extend to those who bold by inheritance or mesne conveyance stemming from Ballard.

It has been repeatedly held tbat such a deed from cotenants, where tbe purpose is clearly partition, does not create or confer upon tbe parties any additional or new or different title, and tbat each party to tbe partition bolds precisely tbe same title be bad before tbe partition — tbe deeds exchanged operating only to sever tbe unity of possession. Wallace v. Phillips, 195 N. C., 665, 143 S. E., 244; Valentine v. Granite Corporation, 193 N. C., 578, 137 S. E., 668; Virginia-Carolina Power Co. v. Taylor, 191 N. C., 329, 131 S. E., 646; Lindsay v. Beaman, 128 N. C., *626 189, 38 S. E., 811; Harrison v. Ray, 108 N. C., 215, 12 S. E., 993. See 47 C. J., p. 282, [38] b.

In Cottrell v. Griffiths, 108 Tenn., 191, 195, 65 S. W., 397, the effect of such a deed is thus expressed:

> “Partition by decree or deed between tenants in common, when they are married women, and the decree or deed includes husbands with wives as decretal parties or joint conveyees, carries no other or more interest to the husband than if such decree or partition deed had been made to the wife, alone.”

The defendants insist that the plaintiffs have attempted, but ineffectually, to set up a cause of action for reformation of the Ballard deed on the ground of mistake — -that they pitched battle upon that issue in the Superior Court and should not be allowed to adopt a different theory of the case on appeal. The rule which defendants invoke has been followed here with some consistency where an actual trial has been had in the court below, and it is obvious to the appellate court that the adoption of a different theory here would be unfair and would tend to defeat justice. It is not applicable to the situation before us.

The demurrer, as has been frequently said, admits every factual averment in the complaint and all reasonable inferences therefrom. Mallard v. Housing Authority, 221 N. C., 334, 338, 20 S. E. (2d), 281. To prevail, it must wipe the slate clean. Against the demurrer, the plaintiffs are entitled to have their pleading appraised by reference to any cause of action which it sufficiently expresses. Hawkins v. Land Bank, 221 N. C., 73, 75, 18 S. E. (2d), 823. In this instance, the inclusion in the pleading of an inadequately stated cause of action for equitable relief (if, indeed, the explanatory references in the complaint could be so construed), not essential to the relief demanded, or at least to relief of some sort upon the facts alleged, is, therefore, not fatal.

The demurrer to the complaint was erroneously sustained, and the judgment of the court below in that respect is

Reversed.