after stating the facts: The facts relied upon as constituting the basis of a defence or counter-claim, must be set out in an answer with the same precision as is requisite in a complaint. Rountree v. Brinson, 98 N. C., 107. Therefore, an equitable defence must be set forth in an answer, as well as proven on the trial, just as the grounds of equitable relief demanded must be distinctly alleged in a *270complaint, and the 'probata made to correspond. In Vickers v. Leigh, 104 N. C., 248, the plaintiffs brought their action (in the nature of a bill in equity) to correct a mistake in omitting the word “heirs” from the deed, and the prayer in the bill in Rutledge v. Smith, Busbee’s Eq., 283, was that a similar mistake be corrected in the same way. So that, if we were to concede (though we are not prepared to do so) that there is internal evidence in the language of the deed sufficient to show that the grantors intended to convey the fee, and omitted the word “heirs” by mistake, the answer fails to set up any such equity, or any but strictly legal grounds of defence. It is needless, therefore, to draw distinctions between the form of this deed and that which was the subject of the action in Vickers v. Leigh, supra. We could not ex mero mota grant equitable relief to the parties who fail to lay the necessary foundation by alleging the facts which, as they claim, entitle them to it.
But the defendant contends that even in a Court of law, under the old system, the deed would have been so construed by transposing the word “heirs” from the covenant of warranty to the habendum as to make it pass to J. H. Wilkins the fee in the land conveyed. The old established rule was that, in order to create an estate of inheritance, the word “ heirs” must appear either in the premises or the habendum of the deed. 2 Black, 298; Stell v. Barham, 87 N. C., 62. The Courts, in order to carry out the intent of the grantor, where it could be gathered from the face of a deed, have, in a liberal spirit, construed conveyances as passing an estate of inheritance in all cases where the word “ heirs” -was joined as a qualification to the name or designation of the bar-gainees, even in the clause of warranty, or where the covenant of warranty was confused with the premises or haben-dum, if, by a transposition of it, or by making a parenthesis, or in any way disregarding punctuation, the word “heirs” could be made to qualify the apt words of conveyance in the *271premises, or the words “to have and to hold” in the haben-dum and tenendum, even though it was made to do double duty as a part of the covenant of warranty. Among the cases falling under this principle are Staton v. Mullis, 92 N. C., 623; Graybeal v. Davis, 95 N. C., 508; Hicks v. Bullock, 96 N. C., 164; Bunn v. Wells, 94 N. C., 67; Ricks v. Pulliam, 94 N. C., 225; Phillips v. Thompson, 73 N. C., 543; Waugh v. Miller, 75 N. C., 127; Allen v Bowen, 74 N. C., 155; Phillips v. Davis, 69 N. C., 117.
But where there are no words of conveyance in the instrument, or where the word “heirs” does not appear in any part of the deed, except in connection with the name of the bargainor, or with some expression such as “party of the first part,” used in the clause of warranty, or elsewhere, to designate the grantor, the deed, if executed before the Act of 1879 was passed, will be construed as vesting only a life estate in the bargainee. Batchelor v. Whitaker, 88 N. C., 350; Stell v. Barham, supra.
The material portions of the conveyance, referred to as exhibit “A,” are as follows: “Witnesseth, that for and in consideration of the sum of two thousand dollars, to them in hand paid by the said J. H. Wilkins, doth give, grant, bargain, sell and convey all of the piece or parcel of land, or so much as our interest, lying and being,” &c. (giving a description of ihe land), “ to have and to hold all of our interest in the above mentioned lot from ourselves, our heirs and all that may claim under us, and our assigns forever, all that above mentioned lot and premises.” The instrument is written in the first person and the word “ heirs ” is used only once, qualified by the pronoun “our,” and plainly referring to the bar-gainors, so that no transposition can cure the fatal defect.
If there were no other difficult}'' in the way, we could not declare that the word of inheritance had been omitted by mistake, where there is no allegation of mistake in the ■ answer, and we find among all the cases decided by this *272Court, no instance in which the word “heirs,” when distinctly used in connection with the word or designation of a bargainor, in a covenant of warranty, has been made to serve the additional purpose of creating an estate of inheritance in the bargainee.
There is no error. The judgment of the Court below must be affirmed.