#### BEN SIMON v. G. H. MASTERS.

(Filed 15 December, 1926.)

1. Pleadings! — Answers—Defenses—Counterclaim.

Where tbe answer to tbe complaint sets up no new matter but its allegations are entirely in defense, a replication by tbe plaintiff is unnecessary. C. S., 525.

3. Judgments, Irregular — Motions in the Cause — Judgment Set Aside— Pleadings — Issues—Counterclaim.

In plaintiff’s action to recover damages of tbe defendant for failing to make a sufficient conveyance of bis lands under a contract to do so, and tbe answer sets up a defense wbicb, from its expression, tbe clerk erroneously regarded as a counterclaim, but wbicb raised issues of fact for tbe jury, a judgment of tbe clerk denying relief to plaintiff is irregular, affording a remedy to plaintiff by motion in tbe cause.

Appeal by defendant from *Schench, J.,*of Buetcombe.

Affirmed.

*Charles B. McRae for plaintiff.*

*Zéb. V. Nettles and Z. W. Hayes for defendant.*

Adams, J.

On 6 February, 1926, tbe plaintiff and tbe defendant entered into a written agreement by tbe terms of wbicb tbe defendant was to sell to tbe plaintiff a parcel of land in the city of Asheville free from all encumbrances except a lien for tbirty-five hundred dollars. Tbe consideration was $13,710," and of this sum tbe plaintiff paid $500 upon tbe execution off tbe contract. Tbe plaintiff alleges that after tbe contract was made be discovered that tbe defendant’s title was encumbered by a restrictive covenant that tbe property should not be sold or rented to any person of a designated race for a term of ninety-nine years.- He then brought this suit to recover tbe sum be bad paid on .the purchase price.

Tbe defendant denied tbe material allegations in tbe complaint and by way of a further answer alleged in substance that tbe plaintiff bad failed to comply with his contract and that tbe defendant bad performed all tbe conditions required of him and bad tendered tbe plaintiff a title wbicb was not encumbered and bad demanded payment of tbe remainder due on tbe purchase price.

No reply was filed to tbe further defense, wbicb was entitled a counterclaim also, and on 28 June, 1926, tbe clerk of tbe Superior Court gave judgment by default against tbe plaintiff for $13,210 with interest thereon from 6 March, and adjudged that upon tbe payment thereof tbe defendant should execute and deliver to tbe plaintiff a deed to tbe premises as p'rovided" in tbe contract; also that tbe property be sold in default of such payment.

*732Upon learning of tbe judgment tbe plaintiff made a motion to set it aside. Tbe motion was denied by tbe clerk and an appeal was taken to tbe judge wbo vacated tbe clerk’s judgment and declared it void. Tbe defendant excepted and appealed.

Tbe allegations set up in tbe answer do not contain new matter constituting a tecbnical counterclaim, but are intended as a defense to tbe plaintiff’s cause of action, wbicb of itself is a denial of tbe alleged counterclaim. It was, therefore, not necessary for tbe plaintiff to file a reply. C. S., 525 *Galloway v. Goolsby,*176 N. C., 635; *Tillinghast v. Cotton Mills,*143 N. C., 268. Tbe judgment by default destroyed tbe plaintiff’s cause, root and branch; if it stands the plaintiff is without remedy. Tbe defense is clearly dependent upon tbe plaintiff’s failure to make good bis allegations; if be succeeds tbe defense fails. It is plainly a ease in wbicb issues are raised upon tbe face of tbe pleadings. Tbe clerk’s determination of these issues resulted in an irregular judgment remediable by motion in tbe cause. *Finger v. Smith,*191 N. C., 818, 819.

Tbe judgment rendered by *Judge Schenclc*is

Affirmed.