53 S.E. 821 | N.C. | 1906
This was an action of ejectment, the plaintiffs claiming as heirs at law of Susan Ervin, and the defendant as her grantee. In the complaint the plaintiffs alleged and relied upon their legal title only, and there being no averment of undue influence, inadequate consideration, or fraud in the treaty, the court properly excluded evidence offered to prove such, and also refused prayers based upon the assumption that evidence to that effect had been admitted. There must be allegata as well as probata. The judge properly admitted evidence upon the question of the mental capacity of Susan Ervin 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,
For exactly the same reason an equitable defense cannot be proven unless set up in the answer. Talbert v. Becton,
In Shelton v. Davis,
There are several other exceptions, but upon examination we find that they do not require discussion, and indeed they are not presented in the appellant's brief. Jones v. Ballou,
No error.
Cited: Gaither v. Carpenter,
(117)