(after stating the facts). We are of the opinion there was error in the ruling of the Court in excluding the evidence offered by the defendants. The plaintiff alleged in his complaint that he was the owner in fee simple, and entitled to the possession of the land. The defendants denied that he was the owner, and this presents the only issuable fact raised by the pleadings, which was in fact directly submitted to the jury in the issue: “ Is the plaintiff' the owner, and entitled to the possession of the land described in the first paragraph of plaintiff’s complaint?”
His Honor fell into the inconsistency of submitting to the jury the issue, and the only issue actually raised by the pleading, and yet refused to permit the defendants to introduce evidence pertinent to the issue and tending to sustain his denial of the title in the plaintiff. He was evidently led into the erroneous ruling by a misconception of the legal import of the answer. The plea denying the title of tho plaintiff was certainly a good plea, but it was disregarded by his Honor, because the defendant had superadded the *581unnecessary specific allegation of facts, that was held to be insufficient, to constitute a plea, because it was not according to the terms and provisions of the statute.
The good plea, which was a general denial, was disregarded because there was a special plea which was bad. Then the reasonableness of the matter would seem to have required the bad plea to be disregarded, and the good one sustained, and this we think was the proper course to be taken in the case, Keathey v. Branch, 88 N. C., 379. The denial of the plaintiff’s title was the only issuable fact raised by the pleading; what follows in the answer about the seven year’s possession, with title, &c., was a mere evidential fact, which in a court of law were never tolerated as good pleading, but were set aside on motion, or disregarded as surplusage. Judge Bliss in his Code Pleading, §206, says: “Issuable facts are those upon which a material issue may be taken, they may be called ultimate facts; they are called in the Missouri (lode substantiate facts, and we may call the facts by which they are established, probative or evidential facts. It would bo folly to take issue upon the latter, for the material ultimate facts may be true, although sustained by other evidence than that anticipated by the pleader.” To illustrate, ho says, "In trespass cle bonis the ultimate facts are the plaintiff’s title, the dispossession, conversion and damage, statements pertaining to the manner of the seizure and the circumstances attending it, or as to what was done with the property, would be pleading evidence, and they will be stricken out as irrelevant and redundant, or if not- stricken out, the defendant is not bound to answer them.” It is true this was sáid with reference to the complaint, but he was treating of pleading, and applied the same principle to the answer.
The specific statement in the answer of the seven years’ possession with title, was matter of evidence merely, and it should not have been pleaded. It was mere surplusage, and *582in no way affected the part of the answer which was well pleaded, “ Utile per inutile non viatur ” Stephen on Pleading, 423.
The judgment of the Superior Court must be reversed, and this opinion must be certified to the Court that a venire do novo may be awarded.
Error. Reversed.