1 Ala. 330 | Ala. | 1840
It is a well settled rule not only at law, but in equity, that the allegata and probata must correspond with each other. This rule has been recognized by repeated decisions of this court. In Morgan’s executrix v. Crabb (3 Porter’s R. 470) it was ruled that no relief could be given, but on proof pertinent to the statement of facts relied on to obtain it. A party is no more entitled to relief upon evidence, without the material allegations, than on such allegations without sufficient proof.
In Goodwin v. Lyon (4 Porter’s Rep. 297) the court say, •however strong may be the proof of a complainant, and however clear his title to the aid of the court, it is wholly immaterial, if the allegations of his bill are not in harmony with his testimony — it cannot be received and regarded by the court. To the same effect is Duren v. Walker & Parsons (5 Porter’s Rep. 345; see also, 3 Litt. Rep. 339; 10 Wheat. Rep. 189; 6 Har. & Johns. Rep. 288; Eng. Cond. Ch. Rep. 544.)
In the case at bar, instead of proving the occupancy of six thousand four hundred arpens of land and a saw mill, of which Joshua Clements and Theron Kellogg were tenants in common, •the proof is, that the plaintiffs intestate occupied six hundred and
Where more persons than one, administer on an estate, they are all alike its representatives, and it is not allowable to sue any number less than all, where they are all within the jurisdiction of the court, eertainly not; without disclosing some special reasons to show that the character of the relief sought made it unnecessary to join them. (Story’s Equity Pleading, 193; Wms. & Ivey, executors v. Sims et al., 8 Porter’s Rep. 579.) The proposition stated results from the principle of the common law, which esteems several executors or administrators as but one person in representing the testator or intestate. Wheeler et al. v. Wheeler (9 Cow. Rep. 34.) Could Mary Clements be regarded as a mere nominal party, it is possible that the omission to join her in the decree with the plaintiff in error, might be regarded as an irregularity, which would not prejudice the defendant — but we are not permitted thus to consider her. Upon both grounds the decree of the circuit court is reversed, and the case remanded to the court of chancery, that the complainant may obtain leave to amend her bill, if she thinks proper, and proceed with the cause against all who have administered on the estate of Joshua Clements deceased, unless some particular reasons exist, why they should not all be joined. The costs of this court are to be paid by the defendant in error.