The joinder of a motion to amend in the old suit, Davidson v. Mayhew, for partition and sale, with a prayer for relief, by the re-execution and correction of the deed executed by L. Q. Sharpe, C. M. E., on the ground of mistake, might have been cause of demurrer, but as no demurrer was filed, the objection is waived, and the case is before us on both pf the questions.

*677In regard to the amendment. The matter is the subject of a motion in the original cause, to be made, not to the Clerk, but to the Judge of the Superior Court, in term, upon notice, on the ground that he now exercises the jurisdiction heretofore exercised by the Judge in Courts of Equity, under the old system. So the demand for an amendment in this action, is put out of the case, and the j ndgment in the Court below is reversed, in respect to the amendment. In regard to the re-execution -and correction of the deed executed by'Sharpe, upon the allegations cf the plaintiffs, which are not controverted by the right of the plaintiff to -have the deed re-executed and corrected so as to add the word “heirs,” and a “seal” and give to it, the effect of a deed in fee simple is clear, and the judgment is affirmed.

The objection that “his Honor refused to have the issues of fact submitted to a jury,'” is met-by the fact, that in respect to the alleged mistake in the execution of the deed, and the averment that “a fee simple estate was sold,” and “that-afee simple price was bid and paid in cash,” was not controverted, nor was the faet that Mr. Sharpe, by mistake, omitted to put his seal to the paper, controverted. We think his Honor committed no error in treating the seeond clause of the answer as obscure, unmeaning and of no legal -effeet. The clause is in these words: “ The defendants deny the other allegations of said complaint, and say the land mentioned in the pleadings belongs to them; that there never was any valid sale thereof, ?,s alleged, and deny that the plaintiffs are entitled to any relief in the premises.” This is a beautiful specimen of precision and perspicuity in pleading, and is an instance of what the books call a “ sham plea,” that is, one put in for form sake, but presenting no matter upon which a material issue of fact can be joined.

It is adjudged that the Clerk of the Superior Court of Ire-dell county as successor of the Clerk .and Master in Equity for .«aid county re-execute the said deed, by supplying the words .necessary to convey an-estate in fee simple, and by adding .& *678seal so as to make it take effect, as a deed in fee simple at the date of the original attempt to convey a fee simple estate. This be will do, by executing a deed to Mott, reciting that he is the assignee, and that the deed is made by order of the Superior Court, to take the place of the deed of L. Q. Sharpe to William Long as of its date.

Should the plaintiffs be advised that the deed, thus re-exe-euted, together with the long uninterrupted possession under this color of title, needs further assurance, they can take tho necessary steps in order to have the proceedings in the old case of Davidson v. Mayhew, on which the title depends, made perfect by a motion in that case, before the Judge of the Superior Court,, who succeeds to all of the jurisdiction of the old Court of equity as well as law.

The judgment will be modified according to this opinion ., each party to pay half of the costs of this Court.

Pee Gubia». Judgment accordingly.