
72 S.E.2d 16 (1952)
236 N.C. 102
WELLS
v.
CLAYTON.
No. 744.
Supreme Court of North Carolina.
August 22, 1952.
*18 Burns & Long, Roxboro, and R. P. Reade, Durham, for plaintiff, appellee.
Victor S. Bryant, Robert I. Lipton, Durham, and Davis & Davis, Roxboro, for defendant, appellant.
ERVIN, Justice.
These propositions are well settled:
1. The law confers upon the parties to a civil action the right to a jury trial when, and only when, an issue of fact arises on the pleadings. G.S. § 1-172; Jeffreys v. Boston Ins. Co., 202 N.C. 368, 162 S.E. 761; Board of Com'rs v. George, 182 N.C. 414, 109 S.E. 77; McQueen v. Peoples Nat. Bank, 111 N.C. 509, 16 S.E. 270. An issue of fact arises on the pleadings whenever a material fact is maintained by one party and controverted by the other. G.S. § 1-196; Lupton v. Day, 211 N.C. 443, 190 S.E. 722. A material fact is one which constitutes a part of the plaintiff's cause of action or the defendant's defense. Adams v. Way, 32 Conn. 160; People v. Lake St. El. R. Co., 54 Ill.App. 348; Hansen v. Sandvik, 128 Wash. 60, 222 P. 205. Although an issue of fact may arise on the pleadings in a particular case, the trial judge may and should withdraw the issue from the consideration of the jury, and enter such judgment as either of the parties may have the right to demand upon the admissions of fact contained in the pleadings if no evidence is offered tending to sustain the allegation of the party having the burden of proof on the issue. Forbes v. Drexel Knitting Mill Co., 195 N. C. 51, 141 S.E. 352; McQueen v. Bank, supra; Judson v. Creighton, 88 Neb. 37, 128 N.W. 651.
2. The plaintiff must allege in his complaint every fact necessary to constitute his cause of action. G.S. § 1-122; Potter v. National Supply Co., 230 N.C. 1, 51 S.E.2d 908; Brown v. Hall, 226 N.C. 732, 40 S.E.2d 412. Moreover, he must prove every such fact if it is denied by the answer of the defendant. King v. Coley, 229 N.C. 258, 49 S.E.2d 648; Parsley v. Nicholson, 65 N.C. 207. But no proof is required of an immaterial allegation. Jeffreys v. Ins. Co., supra; 41 Am.Jur., Pleading, section 369; 71 C.J.S., Pleading, § 522.
3. A fact essential to the plaintiff's cause of action need not be proved if it is alleged in the complaint and admitted in the answer. Nantahala Power & Light Co. v. Sloan, 227 N.C. 151, 41 S.E.2d 361; Little v. Rhyne, 211 N.C. 431, 190 S.E. 725; Adams v. Beasley, 174 N.C. 118, 93 S.E. 454; McMillan v. Gambill, 115 N.C. 352, 20 S.E. 474; Hargrove v. Adcock, 111 N.C. 166, 16 S.E. 16; Jenkins v. North Carolina Ore Dressing Co., 65 N.C. 563. The admission is as effectual as if the fact admitted were found by a jury, and such *19 fact is to be taken as true for all purposes connected with the trial. G.S. § 1-159; Nantahala Power & Light Co. v. Sloan, supra; Leathers v. Blackwell Durham Tobacco Co., 144 N.C. 330, 57 S.E. 11, 9 L.R.A.,N.S., 349; Bonham v. Craig, 80 N.C. 224. This is so even though the admission is not introduced in evidence. Page v. Life Insurance Co., 131 N.C. 115, 42 S.E. 543; McIntosh: North Carolina Practice and Procedure in Civil Cases, section 364.
4. An answer is a pleading designed to present the defendant's side of the case stated in the plaintiff's complaint. G.S. § 1-124. To be sufficient, the answer of the defendant must contain one or more of the following things: (1) A denial of each material allegation of the complaint controverted by the defendant. (2) A statement of new matter constituting an affirmative defense to the cause of action stated in the complaint. (3) A statement of new matter constituting a counterclaim. G.S. § 1-135; McIntosh: North Carolina Practice and Procedure in Civil Cases, section 456. The new matter alleged in an answer in a particular case may constitute both an affirmative defense and a counterclaim. Lancaster Mfg. Co. v. Colgate, 12 Ohio St. 344. When an answer contains new matter constituting a counterclaim, such new matter is to be taken as true for the purposes of the action unless it is actually controverted by the reply of the plaintiff as required by G.S. § 1-159, or unless it is deemed to be denied by the plaintiff as a matter of law without a formal reply on account of the neglect of the defendant to cause the answer to be served upon the plaintiff or his counsel of record as provided by G.S. § 1-140. Lawrence v. Heavener, 232 N.C. 557, 61 S.E.2d 697. When an answer contains new matter not relating to a counterclaim, the new matter is deemed controverted by the plaintiff as upon a direct denial or avoidance as the case may be without a formal reply. G.S. § 1-159; Wagon Co. v. Byrd, 119 N. C. 460, 26 S.E. 144. The court possesses discretionary power, however, to require the plaintiff, on the defendant's motion, to reply to new matter constituting a defense by way of avoidance. G.S. § 1-141.
5. The defendant has the burden of proving an affirmative defense, or a controverted counterclaim. MacClure v. Accident & Casualty Ins. Co., 229 N.C. 305, 49 S.E.2d 742; Barber v. Edwards, 218 N. C. 731, 12 S.E.2d 234; Jones v. Waldroup, 217 N.C. 178, 7 S.E.2d 366; Williams v. Philadelphia Life Ins. Co., 212 N.C. 516, 193 S.E. 728; Lummus Cotton Gin Co. v. Wise, 200 N.C. 409, 157 S.E. 20; Millsaps v. McCormick, 71 N.C. 531. An answer may be in essence a plea in confession and avoidance. Such plea, as its name implies, admits the cause of action alleged by the plaintiff, and sets up some new affirmative matter in avoidance of the same. 41 Am. Jur., Pleadings, section 158; 71 C.J.S., Pleading, § 163. In other words, it confesses the validity of the plaintiff's claim and entitles the plaintiff to judgment thereon, except for the new affirmative matter alleged to avoid such claim. Cohoon v. Swain, 216 N.C. 317, 5 S.E.2d 1; Mitchell v. Whitlock, 121 N.C. 166, 28 S.E. 292; Staten v. Hammer, 121 Iowa 499, 96 N.W. 964; McIntosh: North Carolina Practice and Procedure in Civil Cases, section 461. As a consequence, the plaintiff is entitled to judgment as a matter of law on the cause of action stated in the complaint and admitted in the answer when the answer is in essence a plea in confession and avoidance and the defendant fails to prove the new affirmative matter alleged by him to avoid the confessed cause of action. Cook v. Guirkin, 119 N.C. 13, 25 S.E. 715; McQueen v. Bank, supra; Rumbough v. Southern Improvement Co., 109 N.C. 703, 14 S.E. 314. This is true even though the matter alleged in avoidance constitutes a counterclaim as well as an affirmative defense. Barber v. Edwards, supra; Forbes v. Mill Co., supra.
6. The General Assembly of 1893 enacted the statute now codified as G.S. § 41-10 to avoid some of the limitations imposed upon the remedies formerly sought by a bill of peace or a bill quia timet, and to establish an easy method of quieting titles to land against adverse claims. McIntosh: North Carolina Practice and Procedure in Civil Cases, sections 986, 987. This statute provides that "an action may be brought by any person against another *20 who claims an estate or interest in real property adverse to him for the purpose of determining such adverse claims". The statutory action to quiet title to realty consists of two essential elements. The first is that the plaintiff must own the land in controversy, or have some estate or interest in it, Thomas v. Morris, 190 N.C. 244, 129 S.E. 623; and the second is that the defendant must assert some claim to such land adverse to the plaintiff's title, estate or interest. Brinson v. Morris, 192 N.C. 214, 134 S.E. 453; Satterwhite v. Gallagher, 173 N.C. 525, 92 S.E. 369; Christman v. Hilliard, 167 N.C. 4, 82 S.E. 949; Rumbo v. Gay Manufacturing Co., 129 N.C. 9, 39 S.E. 581; Duncan v. Hall, 117 N.C. 443, 23 S.E. 362. Despite statements to the contrary in cases in other jurisdictions, the plaintiff is not bound to show as an independent proposition in his statutory action to quiet title the invalidity and wrongfulness of the adverse claim. These matters are inseparably interwoven in the two essential elements set forth above. The claim of the defendant is necessarily invalid and wrongful if it is adverse to the title, estate or interest of the true owner. The plaintiff is not required to allege or show the specific circumstances giving rise to the defendant's adverse claim, unless it is essential for the plaintiff to overcome such claim in order to establish his own title, estate or interest. Hence, it is ordinarily sufficient for the plaintiff to allege and show in general terms that the defendant is asserting some claim adverse to him. Ramsey v. Ramsey, 224 N.C. 110, 29 S.E.2d 340.
The task of applying these rules to the instant case must now be performed. The complaint states every fact necessary to constitute a statutory action to quiet title to land against an adverse claim. It alleges that the plaintiff owns the land in controversy in fee simply, and that the defendant asserts some claim to such land adverse to the plaintiff's title. When all is said, the answer is in essence a plea in confession and avoidance. It admits that the plaintiff holds the record or paper title to the land in dispute, and that the defendant claims an estate or interest in such land adverse to the plaintiff. These admissions are tantamount to a confession of the cause of action alleged in the complaint. This is true for the very simple reason that the holder of the record or paper title to land must be assumed to be its true owner unless the contrary appears. Hayes v. Cotton, 201 N.C. 369, 160 S.E. 453; Virginia-Carolina Power Co. v. Taylor, 196 N.C. 55, 144 S.E. 523; Blue Ridge Land Co. v. Floyd, 171 N.C. 543, 88 S.E. 862; Campbell v. Everhart, 139 N.C. 503, 52 S.E. 201; Bryan v. Spivey, 109 N.C. 57, 13 S.E. 766; Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142; Burnside v. Doolittle, 324 Mo. 722, 24 S.W.2d 1011.
The answer alleges this new matter to avoid the cause of action confessed: That the plaintiff holds the record or paper title in part at least as a trustee for the defendant. Such new matter constitutes both an affirmative defense by way of avoidance and a counterclaim by way of reformation. Lawrence v. Heavener, supra; Cuthbertson v. Morgan, 149 N.C. 72, 62 S.E. 744; Gwyn-Harper Manufacturing Co. v. Cloer, 140 N.C. 128, 52 S.E. 305; McLamb v. McPhail, 126 N.C. 218, 35 S.E. 426; Anderson v. Logan, 105 N.C. 266, 11 S.E. 361. It must be deemed to be denied by the plaintiff on the present record.
As a consequence, the defendant had the burden of proving the new matter alleged by him by way of avoidance and counterclaim. He offered no evidence at the trial tending to establish the new matter. This being true, the plaintiff was entitled as a matter of law to have the trial judge withdraw the case from the consideration of the jury and to enter a final judgment quieting her title as against the adverse claim of the defendant. It necessarily follows that the errors, if any, committed by the trial judge in admitting the plaintiff's testimony, in passing on the sufficiency of such testimony, and in charging the jury were harmless, and will not justify the award of a new trial.
For the reasons given, there is in law no error.
