When the case was called for hearing in the Superior Court, a jury trial was waived, and the “matters and things involved in the proceeding” were, by consent, submitted to the court for hearing and determination.
It was made to appear that on 31 January, 1920, the property was conveyed to D. C. Bailey and wife, Cansada Bailey, by deed duly registered in Yancey County. This was the condition of the title on 14 May, 1941, when D. C. Bailey executed right-of-way agreement and release to the respondent which is pleaded in bar of petitioners’ right to recover herein, and on 28 May, 1947, when the respondent entered upon the premises and appropriated a right-of-way across the land in question. The right-of-way agreement and release has not been registered.
Thereafter,- on 14 November, 1947, the feme petitioner instituted an action against her husband to reform the deed of 31 January, 1920, and to have herself declared the sole owner of the land therein conveyed, it being alleged that the entire consideration came from her separate estate and that the name of her husband was inserted in the deed through mistake and inadvertence of the draftsman. There was a verdict for the petitioner, establishing the facts as alleged, and judgment was entered thereon at the January Term, 1948, Yancey Superior Court, reforming the deed in accordance with the prayer of the complaint.
Notwithstanding the judgment of reformation, it was ruled herein that at the time of the release signed by D. C. Bailey, the lands were held by him and the feme petitioner as husband and wife by the entirety, and that his release constituted a bar to the present proceeding. Dorsey v. *118 Kirkland, 177 N.C. 520, 99 S.E. 407. This holding overlooks the verdict and judgment in the reformation suit in which it was found that the name of D. C. Bailey was inserted in the deed by mistake and inadvertence. Sills v. Ford, 171 N.C. 733, 88 S.E. 636. Hence, his only interest in the land originally and at the time of signing the release was that of tenant by the curtesy initiate.
It follows that there was error in dismissing the proceeding.
Error and remanded.