* MacRAE, J., did not sit.
Moore, the original plaintiff, conveyed to Mrs. Talbert after the action was brought. The court had a right to substitute her as a party plaintiff. The Code, section 188. The action was based on the legal title alone, the plaintiff alleging ownership and the defendant simply denying it. The refusal of the court to consider the equitable defense, in the absence of any pleading setting it up, was proper. There must be allegata as well as probata. Neither was there error in the refusal to allow an amendment of the pleadings. This was a (547) matter addressed to the discretion of the court. The defendant, however, can in no event be prejudiced, as his right to assert his equities is expressly saved by the judgment.
We think there was no error in the charge as to damages.
MODIFIED.
Cited: Alley v. Howell, 141 N.C. 115; Burnett v. Lyman, ib., 502. *338
