(after stating the case). The issue and finding thereon were as follows:
*547. “ Did defendant take deed for a half interest in the land, upon an agreement that he was to have all the timber on said land, and when it was cut off he would reconvey to plaintiff?” Answer, “ Yes.”
The judgment of the Court was, in substance, that William Richards holds title to one undivided half of the factory land (one hundred and three acres, described in the complaint), as trustee for Martin Holler, the plaintiff, and that said Richards forthwith execute and deliver to said Holler his deed conveying all the interest of said Richards, being one undivided half in said land, to said Holler in fee simple, and that said plaintiff do recover costs.
The plaintiff does not allege, in bis complaint) that he ever made any payments except ten dollars due on the first half of the purchase money, and subsequently the whole of the first payment, and' lastly, ten dollars on the last half, the deferred payment.
The defendant alleges positively that he paid the amount of purchase money still due, M'hen he bought from plaintiff the second note for purchase money given by the plaintiff.
The plaintiff replies: “As to paragraph one of the new matter, that it is true; that the administrators of Mr. Bean were pressing him on the second note. But he denies he approached defendant and agreed to assign one-half interest in the land on his paying said note, and that by reason of said payment the deed was made to said defendant and plain» tiff as tenants in common. He avers the truth to be as stated in the complaint.”
Counsel for defendant confined the discussion to the question, whether the testimony of the plaintiff, if admitted to be true, would be sufficient to establish his equity in the undivided half of the land in controversy, conveyed by the commissioner to the defendant.
. The objection is, however, to the competency, not the sufficiency, of the plaintiff’s evidence in itself) We must, there*548fore, determine at the threshold, before reaching the point presented by counsel, whether the nature of the action is such that the testimony was admissible to be considered with other evidence tending to prove the plaintiff’s right to the relief demanded, even though, without the aid of extrinsic facts, his testimony, as a whole, does not constitute proof of a cause of action.
One who asks a court for relief must allege and prove such facts as will establish, if true, his right to the remedy specified. Willis v. Branch, 94 N. C., 143.
The plaintiff does not pretend that the deed was executed by mistake, but admits that it was drawn with his assent, if not by his request, so as to convey to the defendant a half interest in the land. The pleadings do not justify the conclusion, that the plaintiff paid the whole of the purchase money, and therefore claimed, in the Court below, that his' testimony was competent to be considered in connection with other testimony tending to establish a resulting trust in his favor as to the interest conveyed to the defendant. Had the complaint contained an allegation of mistake, or set up such a claim o.f resulting trust, it may be that his Honor’s rulings would have been correct. If so, the question whether there was evidence dehors the deed, and in addition to the evidence of the plaintiff, such as required the Court to submit an issue to the jury, might have been raised at the close of the evidence, and then the principle stated in Hemphill v. Hemphill, 99 N. C., 436, and the other cases cited by counsel, would have applied.
But the complaint does not show who paid the second installment of the purchase money, while the answer sets up, as new matter, that it was paid by the defendant Richards, and the replication contains no denial of the payment alleged in the answer. We must assume, therefore, that the defendant paid a large proportion (probably about half) of the purchase money that the plaintiff had agreed to pay, *549and that the deed was, thereupon, made to him, with the assent of the plaintiff.
The right to recover, therefore, rests upon the naked allegation, by the plaintiff, that the defendant made a verbal promise to reconvey when the timber should be cut off the land, and that allegation is denied in the answer. In view of the state of the pleadings, then, the testimony of the plaintiff did not tend 10 show his right to any relief, and the objec-¡ tion ought to have been sustained by the Court. It may be added, that upon the finding on the issue simply, that the1 defendant had promised verbally, when the deed was delivered to him, to reconvey to the plaintiff, when he had cut all of the timber off the land, leaves the plaintiff’s right to relief to depend still entirely upon a verbal promise, when there is no principle, in view of the denial of the defendant, to take the case out of the operation of the statute of frauds. Where the plaintiff declares upon a verbal promise, void under the statute of frauds, and the defendant either denies that he made the promise, or sets up another and different contract, or admits the promise and pleads specially the statute, testimony offered to prove the promise is incompetent, and should be excluded on objection. Gulley v. Macy, 84 N. C., 484; Morrison v. Baker, 81 N. C., 76; Young v. Young, ibid., 91; Bonham v. Craig, 80 N. G., 224.
The case of Michael v. Foil, 100 N. C., 178, to which our attention has been called, is not at all analogous to this. There, the plaintiff brought his action, not to compel a recon-veyance, or affect the deed in any way, but upon a verbal promise to pay money that might be realized by a future sale of the mineral interest in land conveyed.
The Court below erred in admitting the testimony, and the defendant is entitled to a new trial.
Error. Venire de novo.