PlAINTIEr’s Appeal.
¥e see nothing in the order striking out certain portions of the complaint which may be harmful to the plaintiff or embar*254rassing to it in the prosecution of its cause, and the order will not be •disturbed. Patterson v. R. R., 214 N. C., 38, 198 S. E., 364; Pemberton v. Greensboro, 203 N. C., 514, 515, 172 S. E., 196.
DEFENDANTS’ APPEAL.
It is apparent that the defendant Edwards intends to take whatever advantage he may of the windfall that has come to him by reason of the innocent mistake of the original adjoining landowner who, unwittingly, •constructed his house partly upon a vacant lot now the property of •defendant. Whatever advantage the defendant may have under the austerities of more formal law, plaintiff contends, with some reason, that this attitude is calculated to produce substantial injustice, and argues that it is remediable in equity. We fear that the method of approach to the equitable jurisdiction has not been fortunate.
That there were equities between the original owners of these adjoining lots — the one who built too generously and the one upon whose land the house encroached — must be conceded. Pomeroy Equity Jurisprudence, Vol. 2, sec. 867; Hardy v. Burroughs (Mich., 1930), 232 N. W., 200, and cases cited; Phelps v. Kuntz et al. (N. J., 1910), 76 Atl., 237; Crump v. Sanders (Tex., 1915), 173 S. W., 559; 31 C. J., 318-319; Gordon v. Fahrenberg & Penn, 26 La. Ann., 366; Matson v. Calhoun, 44 Mo., 368; Uthoff v. Thompson (La., 1933), 146 So., 161; Olin et al. v. Reinecke et al. (Ill., 1929), 168 N. E., 676. See, also: 31 C. J., p. 312, sec. 9; Harrington v. Lowrie, 215 N. C., 706, 2 S. E. (2d), 872, and cases cited. Whether these equities have weathered both time and the vicissitudes of trade and alienation is a question. Such a right is capable of equitable assignment (Bank v. Jackson, 214 N. C., 582, 586, 200 S. E., 444; Trust Co. v. Construction Co., 191 N. C., 664, 132 S. E., 804), but we are unable to agree that it runs with the land — that is, that it follows a transfer of the legal title of the land upon which the owner •supposed he was building and is assertable against all persons into whose hands may come the land on which the encroachment was made— although there is authority in some jurisdictions suggesting that view.
The plaintiff derives its title to the Jackson lot through foreclosure •of a trust deed which, in its form at the time, and, of course, its present form, is a mere legal conveyance of the title — -in trust, of course- — -without expression of any intent between the parties to include in the contract any extraterritorial rights and, in law, must be confined in its effect to the metes and bounds of the description. If it could be now reformed to any advantage to the plaintiff, no equitable basis has been laid for it in the complaint. Buchanan v. Harrington, 141 N. C., 39, 53 S. E., 478, and cases cited.
*255The Jacksons have not been made parties to tbe suit, and no attempt has been made by the plaintiff to work out its equity through any authority from them, other than that supposed to be contained in the successive transfers of the legal title.
If we looked alone to the assertion of this equity, which is, of course, the paramount relief sought for, we would be compelled to sustain the demurrer in the present state of the pleading.
But the plaintiff alleges that defendants have wrongfully taken from it, the lawful owner, the possession of the whole building, are collecting the rents for it, and not only refuse to account for them, but are demanding of plaintiff a payment to them of the rentals collected for a long period of years, during which plaintiff has paid taxes and kept the premises in repair. In this aspect the complaint is sufficient to support a demand for ejectment of defendants from plaintiff’s admitted portion of the house, and an accounting from them of the rents. It is immaterial whether this is included in the prayer, if the allegations in the complaint warrant it. Knight v. Houghtalling, 85 N. C., 17; McNeill v. Hodges, 105 N. C., 52, 11 S. E., 265; Lipe v. Trust Co., 206 N. C., 24, 173 S. E., 316; Bolich v. Ins. Co., 206 N. C., 144, 173 S. E., 320; Ins. Co. v. McCraw, 215 N. C., 105, 1 S. E. (2d), 369; Sparrow v. Morrell & Co., 215 N. C., 452, 2 S. E. (2d), 365.
We are quite aware this might prove a Pyrrhic victory for plaintiff, if it should be unable to assert successfully the equity which it claims; but we are not permitted to strike down a pleading, against the protest of the pleader, when the Court might give some relief on the facts, alleged, although not that asked for in the prayer. See authorities, supra.
What the plaintiff may do hereafter to “mend its licks,” if anything, is not, at present, a concern of the Court.
On both appeals, the judgment is
Affirmed.