The allegations of the complaint do not permit us — -at least for the purpose of this review — to regard the deed made to Mary Ballard and her husband as a separate, detached transaction, and to draw certain inferences from its form which, without attending circumstances, might defeat the action and sustain the demurrer. The plaintiffs allege that at the time this deed was made there were other deeds of similar purport and purpose executed and exchanged between the parties as a part of the same transaction — a transaction which, as they allege, explains and characterizes the deed under consideration.
It is alleged that the lands to which these deeds refer were component parts of a tract of land inherited from the deceased father and held in common. It is further alleged that the tenants in common had agreed to divide the land by voluntary partition, and had determined upon the moiety which each was to receive, and that the sole purpose of these deeds, including the Ballard deed, was to make effectual this partition, and set apart the parcel which each of the tenants in common might thereafter hold and enjoy in severalty. They contend, therefore, that the deeds should be construed together in the light of the attendant circumstances and the purpose for which they were made and exchanged. Millard v. Smathers, 175 N. C., 56, 94 S. E., 1045; Jelly v. LaMar, 242 Mo., 44, 145 S. W., 799; Casstevens v. Casstevens, 227 Ill., 547, *62581 N. E., 709; 118 American State Reports, 291; 40 Am. Jur., p. 15,. sec. 17; 47 C. J., 274, sec. [19] 2.
Upon tbe alleged facts of tbe complaint, tbe case falls witbin tbe principle expressed in Sprinkle v. Spainhour, 149 N. C., 223, 62 S. E., 910, and Speas v. Woodhouse, 162 N. C., 66, 77 S. E., 1000; Jelly v. LaMar, supra. Speaking to tbe question in Sprinkle’s case, supra, and construing a deed similar in form and made under like circumstances, Brown, J., said:
“Assuming for tbe sake of tbe argument tbat tbis particular deed, under tbe circumstances attending it, bad conveyed an estate in fee to busband and wife, botb, tbe busband and those claiming as bis beirs would not be permitted to set up a claim to tbe land. It descended to S. E. Y. Sprinkle from ber ancestor, and tbis partition deed was made during ber coverture. At tbe date of its execution tbe land belonged to ber separate estate. It is one of tbe essentials of tbe peculiar estate by entireties sometimes enjoyed by busband and wife, tbat tbe spouses be jointly entitled as well as jointly named in tbe deed. Hence if tbe wife alone be entitled to a conveyance, and it is made to ber and ber busband jointly, tbe latter will not be allowed to retain tbe whole by survivorship. And it matters not if tbe conveyance is so made at ber request, because being a married woman she is presumed to have acted under tbe coercion of ber busband. Moore v. Moore, 12 B. Mon., 664; Babbitt v. Scroggins, 1 Duval, 273; Gillan v. Dixon, 65 Pa. St., 395, all cited in 18 Am. Dec., 383, 384.”
If Mrs. Ballard already held title to tbe parcel which she received in the division by inheritance from ber father — and tbat, as we have seen, is tbe allegation — the deed of tbe cotenants to ber and ber busband made under tbe circumstances alleged could not have tbe effect of creating an estate by entirety, since tbe grantees, busband and wife, are not jointly entitled, and tbe busband would not be entitled to bold on tbe theory of survivorship. Moreover, there is no conveyance by tbe wife to tbe bus-band of tbe interest thus held; and, therefore, be got no title by tbe deed of tbe eotenants without ber joinder. Tbis defect of title would, of course, extend to those who bold by inheritance or mesne conveyance stemming from Ballard.
It has been repeatedly held tbat such a deed from cotenants, where tbe purpose is clearly partition, does not create or confer upon tbe parties any additional or new or different title, and tbat each party to tbe partition bolds precisely tbe same title be bad before tbe partition — tbe deeds exchanged operating only to sever tbe unity of possession. Wallace v. Phillips, 195 N. C., 665, 143 S. E., 244; Valentine v. Granite Corporation, 193 N. C., 578, 137 S. E., 668; Virginia-Carolina Power Co. v. Taylor, 191 N. C., 329, 131 S. E., 646; Lindsay v. Beaman, 128 N. C., *626189, 38 S. E., 811; Harrison v. Ray, 108 N. C., 215, 12 S. E., 993. See 47 C. J., p. 282, [38] b.
In Cottrell v. Griffiths, 108 Tenn., 191, 195, 65 S. W., 397, the effect of such a deed is thus expressed:
“Partition by decree or deed between tenants in common, when they are married women, and the decree or deed includes husbands with wives as decretal parties or joint conveyees, carries no other or more interest to the husband than if such decree or partition deed had been made to the wife, alone.”
The defendants insist that the plaintiffs have attempted, but ineffectually, to set up a cause of action for reformation of the Ballard deed on the ground of mistake — -that they pitched battle upon that issue in the Superior Court and should not be allowed to adopt a different theory of the case on appeal. The rule which defendants invoke has been followed here with some consistency where an actual trial has been had in the court below, and it is obvious to the appellate court that the adoption of a different theory here would be unfair and would tend to defeat justice. It is not applicable to the situation before us.
The demurrer, as has been frequently said, admits every factual averment in the complaint and all reasonable inferences therefrom. Mallard v. Housing Authority, 221 N. C., 334, 338, 20 S. E. (2d), 281. To prevail, it must wipe the slate clean. Against the demurrer, the plaintiffs are entitled to have their pleading appraised by reference to any cause of action which it sufficiently expresses. Hawkins v. Land Bank, 221 N. C., 73, 75, 18 S. E. (2d), 823. In this instance, the inclusion in the pleading of an inadequately stated cause of action for equitable relief (if, indeed, the explanatory references in the complaint could be so construed), not essential to the relief demanded, or at least to relief of some sort upon the facts alleged, is, therefore, not fatal.
The demurrer to the complaint was erroneously sustained, and the judgment of the court below in that respect is
Reversed.