Action to Recover Land — Pleading.
In an action for the possession of land, if the defendant relies upon a defense that is purely equitable, he must set it up in the answer, instead of merely denying that the plaintiff is the owner and entitled to possession, and that he unlawfully withholds the same.
The land was bid off by the plaintiff, at a sale made by his father as trustee, in a deed of trust executed to him by the defendant. The other facts sufficiently appear in the opinion.
SHEPHERD, J.
The complaint alleges that the plaintiff is the owner and entitled to the possession of the land, and that the defendant wrongfully withholds the same. The answer is a simple denial of these allegations. The only question here, therefore, is whether the plaintiff acquired the legal title by virtue of the sale and deed of the trustee. We are clearly of the opinion, and indeed the counsel for the appellant virtually admitted, that the legal title passed to the plaintiff.
It is contended, however, that there was testimony tending to show that the plaintiff purchased as the agent of his father, the trustee; that the land was sold for a price greatly below its value, and that the court should have submitted such testimony to the jury. The reply to (95) this is that such a defense is purely equitable, and, not having been set up in the answer, is irrelevant to the issues raised by the pleadings. It is needless to cite authority for such a plain and generally accepted proposition. There is no error.
Affirmed.
Cited: Wilson v. Wilson, 117 N.C. 352; Patterson v. Galliher, 122 N.C. 515; Alley v. Howell, 141 N.C. 115; Davenport v. Vaughn, 193 N.C. 650.