28 Mo. 576 | Mo. | 1859
delivered the opinion of the court.
This suit was commenced under the act of 1849, and having been tried without a jury, it was necessary that the court should find the facts on which its judgment was founded.
The plaintiff had recovered a judgment against Christopher L. Chiles in his lifetime, and the object of this suit was to subject to the payment of his judgment a tract of land which it is alleged in the petition was purchased by said Christopher of Henry T. Chiles. It is also alleged that said Christopher paid his own money for the land, amounting to three thousand dollars, but, for the purpose of cheating his creditors, and especially for the purpose of defeating the
It is unnecessary to notice the evidence; for, conceding that it was sufficient to warrant the finding, it is manifest that the finding was not made on the issues raised by the pleadings. The defendant did not pretend in his answer that he had purchased the property of his father, or had any agreement him on the subject, but on the contrary averred that his father did not make the purchase directly or indirectly, and insisted that he had made the contract and concluded the purchase himself directly with Henry T. Chiles without his father’s means or agency.
It is settled by the decisions of this court that a defendant can not introduce evidence to support a defence not set up in his answer; (Winston v. Taylor, 28 Mo. 82; Cowden v. Cairns, 28 Mo. 471;) and a party is not entitled to a judg ment on a finding of facts different from any theory of the case set up in the petition or answer. The judgment ought not to be grounded on a defence not made in the answer, and whenever a defence is disclosed by the evidence different from that set out in the answer, the court may, at any time, in furtherance of justice, and on such terms as may be just, amend any pleading by conforming it to the facts proved, provided the amendment does not substantially change the claim or defence. (2 R. C. 1855, § 3, p. 1253.)