56 Ala. 60 | Ala. | 1876
It is unnecessary in this case to consider any other question than that of tbe refusal of tbe cbancellor to allow tbe proposed amendment to tbe bill; for, if tbe pleadings are permitted to remain as they are, tbe complainant is not entitled to dower in ber deceased husband’s lands. — Bev. Code, § 2380. <
Tbe law, under which it is claimed tbe amendment should have been allowed, is as follows: “ Amendments to bills must be allowed, at any time before final decree, * * to meet any state of evidence which will authorize relief. * * If an amendment be allowed at tbe bearing, to bill or answer, tbe party against whom tbe amendment is allowed shall be entitled to a continuance, as a matter of right; and if tbe cause is continued, both parties shall have the right to take additional testimony.” — Bev. Code, § 3356.
Tbe purpose of tbe present bill is to recover dower and quarantine. Tbe original bill, as filed, contains an admission that complainant is “seized and possessed in fee simple, as ber separate estate under tbe Code of Alabama, of * * one bouse and lot in tbe city of Mobile, Alabama, * * ' worth three thousand dollars.” Two amendments were made to tbe bill, while tbe case was undergoing preparation ; but neither of them affects tbe clause above copied. Sworn answers were required of defendants, and tbe adult parties so answered. They admitted that Mrs. Alexander owned said property, and averred it was worth much more
The testimony of Mrs. Alexander, complainant, furnishes the only ground on which the motion can be based. The first interrogatory propounded to her contains the following language: “State whether or not you were the owner, at the time of your marriage, of a house and lot, furnished with household and kitchen furniture ?” In her answer she said, “I was the owner of house and lot in Mobile, Alabama, and also eight or ten shares in twro insurance offices, three servants, and also a house and lot on State street, in Mobile, Alabama, which I held as property of my children,-the same having been purchased with money which was deeded to me and my heirs, which money really belonged to my children.” In answer to a cross-interrogatory she said, “At the death of my husband, my separate estate consisted of nothing but the few articles of furniture, which I have repeatedly described and enumerated in my answers to the interrogatories in chief, and which I value at about three hundred and fifty dollars. I also had subject to my control the house and lot on State street, in Mobile, which belonged to me and my children. This house and lot was purchased with money inherited by my former husband, Capt. Adams, and which was given to me and my children by him, by deed of gift.” Neither tne deed of gift referred to, nor any paper title to the house and lot on State street, is attached to Mrs. Alexander’s deposition, or brought to the notice of the court.
On consideration of the evidence, the chancellor decided, that the statutory separate estate of Mrs. Alexander, including the dwelling on State street, was equal in value to her dower interest in the lands of Ur. Alexander. There is not enough in this record to convince us he erred in this con
It is a cardinal rule of chancery law, that the allegata and probata must correspond in every substantial element of complainant’s cause of action. A case for equitable relief must be shown by the bill, and substantially the same case must be shown in the proof, or in the admissions of the pleadings; and, as averments without proof, or proof without averments, will, neither of them, entitle a party to relief; so, if the bill show one cause of action, and the proof another, though each, disclose a ground for equitable relief, yet, for the variance, the bill must be dismissed, unless the variance be healed by an amendment. The best practitioners, through imperfect or erroneous information, will sometimes encounter a variance between their allegations and proof, which, without the statute (Bev. Code, § 3356), will be fatal to their bills. To prevent such result, the statute in question was enacted. Properly applied, the statute is eminently conservative, and can work no wrong or surprise to any one.
In King v. Avery, 37 Ala. 169, speaking of this statute, we said: “ If the state of the proof authorizes relief, the chancellor has no discretion in the matter of allowirigthe amendment. * * In the present case, the amendment should have been allowed, if the state of the proof authorizes relief.” In the present record, the testimony is very vague and unsatisfactory. The deed of gift from Capt. Adams, and the 'title to the house and lot on State street, should have been put in evidence. They were the highest, and, in the absence of a sufficient excuse, the only legal evidence of their terms. Any attempt to interpret them, without having them before the court, would be hazardous. Failure to produce them must work some distrust of complainant’s claim, so imperfectly presented. We cannot, on such uncertain testimony, affirm that the amendment should have been allowed. Coming as the offer in this case did, we are by no means convinced that, if allowed, there exists, in fact, a ease which authorizes relief in favor of complainant. There are other reasons, not necessary to be noticed, why the amendment in this case should not, probably, have been entertained or allowed.
Decree affirmed.
