When the pleader has alleged (1) the terms of an oral agreement made between the parties; (2) their subsequent adoption of a written instrument intended by both to incorporate the terms of the oral agreement but differing materially from it; and (3) their mutual but mistaken belief that the writing contained their true, i.e., the oral, agreement, our cases hold that the pleading will survive a demurrer. McCallum v. Insurance Co., 259 N.C. 573, 131 S.E.2d 435; Case v. Arnold, 215 N.C. 593, 2 S.E.2d 694; Alexander v. Bank, 201 N.C. 449, 160 S.E. 460; Strickland v. Shearon, 191 N.C. 560, 132 S.E. 462; McLamb v. McPhail, 126 N.C. 218, 35 S.E. 426. A mere allegation that plaintiff's name was inserted in the instrument sought to be reformed "through error," however, is insufficient, Smith v. Smith, supra, to comply with our rule that "mistake as a ground for relief should be alleged with certainty, by stating the facts showing the mistake — either a mutual mistake of the parties or a unilateral mistake with circumstances of imposition."
Such new matter constitutes both an affirmative defense by way of avoidance and a counterclaim by way of reformation. Lawrence v. Heavner, supra; Cuthbertson v. Morgan, 149 N.C. 72, 62 S.E. 744; Manufacturing Co. v. Cloer, 140 N.C. 128, 52 S.E. 305; McLamb v. McPhail, 126 N.C. 218, 35 S.E. 426; Anderson v. Logan, 105 N.C. 266, 11 S.E. 361. It must be deemed to be denied by the plaintiff on the present record. As a consequence, the defendant had the burden of proving the new matter alleged by him by way of avoidance and counterclaim. He offered no evidence at the trial tending to establish the new matter.
The equitable right to reformation may be invoked by a defendant by way of defense or counterclaim in an action based on the deed. Cuthbertson v. Morgan, 149 N.C. 72, 62 S.E. 744; Manufacturing Co. v. Cloer, 140 N.C. 128, 52 S.E. 305; McLamb v. McPhail, 126 N.C. 218, 35 S.E. 426. The defendant does not seek to correct the deed for mutual mistake.
Thus, holding that Percy Barrett Perry acquired, under his father's will, an alienable life estate, the challenge to the sufficiency of his deed to convey to his then wife, the plaintiff, his life estate, must fail as a matter of law. Walker v. Long, 109 N.C. 510, 14 S.E. 299; Fort v. Allen, 110 N.C. 183, 14 S.E. 685; Sydnor v. Boyd, 119 N.C. 481, 26 S.E. 92; McLamb v. McPhail, 126 N.C. 218, 35 S.E. 426. In the Sydnor case, supra, it is stated that while at common law the husband and wife, being deemed one person, were incapable of contracting with each other, and it was necessary to convey to a third person, as a conduit, in order to pass the title to property from one to the other, the wife is now allowed to acquire title to property conveyed to her by the husband.
See, also, valuable opinion of Cothran, J., in the case of McMahan v. McMahan, 115 S.E. 293, 26 A.L.R., 1295. It should be observed, perhaps, that we are not dealing with inconsistent (McLamb v. McPhail, 126 N.C. 218, 35 S.E. 426) or contradictory (Upton v. R. R., 128 N.C. 173, 38 S.E. 736) defenses, set forth by answer, such as are permitted under C. S., 522. Williams v. Hutton, 164 N.C. 216, 80 S.E. 257. It is equally clear, we think, that the trial court ruled correctly in entering judgment as of nonsuit on the plaintiff's first cause of action.
This view of the case relieves us of the necessity of deciding whether the answer sets up a counterclaim in the nature of a cross-action to remove a cloud from the defendant's title and whether the clerk's first judgment was free from error. McLamb v. McPhail, 126 N.C. 218, 221; Turner v. Livestock Co., 179 N.C. 457; C.S., 1743. The judgment is Affirmed.
The defendant could plead double, and set up inconsistent or contradictory defenses. McLamb v. McPhail, 126 N.C. 218; Williams v. Hutton, 164 N.C. 216; Clark's Code (3d Ed.), sec. 245; 1 Pell's Revisal, p. 226, sec. 482, and note with cases. It may be that in the development of the case the defendant's proof may not sustain her allegations of fraud and undue influence, but what she has charged is sufficient in law and entitles her to be heard before the jury.
We are of opinion that in form it is a substantial compliance with the statute; in fact, it is almost in the words of the statute. McLamb v. McPhail, 126 N.C. 217. (435) (2) There was evidence offered upon the part of the plaintiff tending to prove that Mrs. White loaned $500, as alleged in the complaint, to the defendant's intestate.
" It is also permitted under our practice to plead inconsistent defenses ( McLamb v. McPhail, 126 N.C. 218), and matter alleged as a defense not constituting a counterclaim is deemed to be denied without a reply. Smith v. Burton, 137 N.C. 79.
The present Chief Justice said: "It was because the Legislature thought the equitable doctrines (as laid down in Busbee's case) inconvenient or unjust that the act (1893) was passed." Beck v. Meroney, 135 N.C. 532; McLamb v. McPhail, 126 N.C. 218. The statute provides that if the defendant disclaims title the cost is adjudged against the plaintiff.