#### GEORGE W. EDWARDS v. BERNICE E. TURNER and Husband, EDWIN D. TURNER, LINVILLE K. MARTIN and I. E. CARLYLE, Trustee.

(Filed 20 April, 1932.)

Pleadings E a — Amendment in this case held not to substantially change the cause alleged and i>leadings wei’e not inconsistent.

Where the purchaser of lands under a foreclosure sale of a mortgage brings ejectment against the mortgagors in possession who deny the validity of the mortgage under which the lands were sold, it is within the discretion of the trial court to permit the plaintiff to amend his complaint to allege that the defendants had given other mortgages on the same land and ask that if the mortgage under which he claims be declared void that he be subrogated to the liens of the prior mortgages and that the lands be sold to enforce the same, there being no substantial departure by the amendment from the cause originally alleged, and the pleadings not being inconsistent. C. S., 647, 607.

Appeal from *Harding, J:,*at February Term, 1932, of Fobstth.

Affirmed.

This was a civil action in ejectment, instituted in the Forsyth County Court, before his Honor, Oscar 0. Efird, judge presiding. From an *629order signed by the judge of the Forsyth County Court overruling a motion, plea and a demurrer filed by the appellant, Bernice E. Turner, to the amended complaint, as appears of record, Bernice E. Turner appealed to the Superior Court for Forsyth County. The appeal was heard before his Honor, W. E. Harding, judge presiding at the February Term, 1932, who signed a judgment sustaining the judgment of the Forsyth County Court, as appears of record. Bernice E. Turner excepted to the judgment of the Superior Court, assigned error and appealed to the Supreme Court.

*Parrish & Deal for plaintiff.*

*Peyton B. Abbott and Hastings & Booe for defendants.*

ClaeKSON, J.

The plaintiff sued defendant Bernice E. Turner in ejectment. In answer she alleged that the note secured by deed in trust under which the land in controversy was sold and at which sale plaintiff purchased was a forgery; therefore the sale under same was inoperative and void. The plaintiff was allowed to amend and filed an amended complaint. *Robinson v. Willoughby,*67 N. C., 84. In the amended complaint the plaintiff has not alleged two causes of action, but has only asked for alternative relief. The plaintiff’s pleadings are not inconsistent. He alleges that the last deed of trust which was foreclosed was valid. The defendant denies this. The plaintiff then alleges that the three previous deeds of trust were valid. That is not in fact inconsistent with his first allegation. In other words, the plaintiff alleges that all four deeds of trust are valid. The defendant contends that none of them are. The plaintiff asks for alternative relief, depending on how the facts may be found.

The defendant, Bernice E. Turner, contends that the amended complaint is a departure. We cannot so hold.

0. S., 547, is as follows: “The judge or court may, before and after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party; by correcting a mistake in the name of a party, or a mistake in any other respect; by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the fact proved. When a proceeding taken by a party fails to conform to law in any respect, the trial judge may permit an amendment of the proceeding so as to make it conformable thereto.”

In McIntosh, N. C. Prac. & Proc., part sec. 479, at pp. 510-11, is the following: “The plaintiff cannot in his reply set up a cause of action *630different from that contained in bis complaint. Sucb pleading is a departure, and is governed by tbe provision that tbe reply must not be inconsistent witb tbe complaint.”

Mclntosb, *supra,*part sec. 487, at p. 516, says: “Tbe statute permits an amendment in tbe discretion of tbe court, ‘when tbe amendment does not change substantially tbe claim or defense.’ Tbis is found in connection witb tbe amendment to make tbe pleading conform to tbe proof, but it bas been applied generally to all amendments made under order of court. Tbe pleadings of tbe parties fix tbe nature of tbe action, and it is not subject to arbitrary control, and tbe court bas no authority to allow an amendment which makes a substantially new action, except by consent of tbe parties. ‘This would not be to amend, in any proper sense, but to substitute a new action by order, for and in place of tbe pending one.’ Tbis is in tbe nature of departure in pleading, and it may arise by introducing new allegations, which change tbe nature of tbe action or new parties which have tbe same effect.” (Quoting from *Glendenin v. Turner,*96 N. C., 416, and citing other cases.) *Olmstead v. Raleigh,*130 N. C., 243; *Parker v. Realty Co.,*195 N. C., 644; *Gibbs v. Mills,*198 N. C., 417; *Jones v. Vanstory,*200 N. C., 582; *Lykes v. Grove,*201 N. C., 254.

C. S., 507, in part, is as follows: “Tbe plaintiff may unite in tbe same complaint several causes of action, of legal or equitable nature, or both, where they all arise out of (1) Tbe same transaction, or transaction connected witb tbe same subject of action,” etc. *Shafer v. Bank,*201 N. C., at p. 419.

Tbe causes of action which plaintiffs rely on arise out of or are connected witb tbe same subject of action — bottomed on tbe same indebtedness.

In *Wallace v. Benner,*200 N. C., at p. 131, we find: *“We*think tbe principle applicable in tbis case is clearly set forth in Jones on Mortgages (8 ed., 1928), part sec. 1114, pp. 559-560: ‘There is clearly no scope for tbe operation of tbe principle of equitable subrogation in a case of ordinary borrowing, where there is no fraud or misrepresentation, and tbe borrower creates in favor of tbe lender a new and valid security, although tbe funds are used in order to discharge a prior encumbrance. In sucb case, the lender is treated as a mere volunteer in tbe transaction. But tbe rule is settled that, where money is expressly advanced in order to extinguish a prior encumbrance, and is used for tbis purpose, witb tbe just expectation on tbe part of tbe lender of obtaining a valid security, or where its payment is secured by a mortgage which for any reason is adjudged to be defective, tbe lender or mortgagee may be subrogated to tbe rights of tbe prior encumbrancer *631whose claim he has satisfied, there being no intervening equity to prevent. It is of the essence of this doctrine that equity does not allow the encumbrance to become satisfied as to'the advancer of the money for such purposes, but as to him keeps it alive, and as though it had been assigned to him as security for the money,” etc.

In the amended complaint is the following prayer for judgment: “(1) That the defendants; Bernice E. Turner and her husband, Edwin D. Turner, be removed from the possession of the lands, and that the plaintiff be placed in possession thereof; that the costs of this action to be taxed against the defendants, Bernice E. Turner and Edwin D. Turner. (2) That if it be adjudged by the court that the note and deed of trust, of 23 April, 1929, are forgeries as to-the defendant, Bernice E. Turner, the court adjudge that the plaintiff is subrogated-to the rights that Linville K. Martin would have had under any and all of the three previous deeds of trust, and that the court decree that the plaintiff is entitled to a lien on said lands to secure him in the sum of $2,640, with interest thereon from 23 April, 1929, and that the court appoint a commissioner for the purpose of foreclosing same, and .that the net amount resulting from said foreclosure he applied to the indebtedness of Bernice

E. Turner, Edwin D. Turner and Linville K. Martin to the plaintiff in the sum of $2,640, with interest from 23 April, 1929. (3) That the court grant the plaintiff such other and further relief as may be just and proper.” For the reasons given, the judgment of the court below is

Affirmed.