82 Ill. App. 153 | Ill. App. Ct. | 1899
delivered the opinion of the court.
A question of pleading, only, is raised by this record. The bill was to foreclose a trust deed for the whole amount secured by it, the principal note not having by its terms matured, because of default in the payment of an installment of interest and certain taxes.
Concerning the right so to do, it was alleged that the trust deed provided that if default were made, and continued for thirty days, in the payment of any installment of interest, then the whole of the principal sum by said trust deed secured “ should at once, at the option of the holder or holders of said principal promissory note, become due and payable without notice,” etc., “ and that thereupon the legal holder of said principal note, or said trustee for the benefit of such holder, should have the right to immediately foreclose said trust deed,” etc.
And it was alleged that default was made in the payment of the interest due on the last preceding installment day, and in the payment of certain taxes.
The bill contained no allegation that the holder of the principal note, or anybody for him, had declared the principal sum to be due, or in any manner exercised the option conferred upon him by the trust deed.
Assuming, for present purposes, that it was sufficiently proved that the holder of the note did declare the whole of the principal due, does making such proof cure the defect in not averring the fact % Certainly not. “ Nothing is better settled than that proofs without allegations are just as unavailing as allegations without proof.” Bremer v. Canal & Dock Co., 123 Ill. 104; Detroit Stove Works v. Koch, 30 Ill. App. 328.
“It is a fundamental rule of equity pleading, that the allegations of a bill, the proof and the decree must correspond, and that the decree can not give relief that facts disclosed by the evidence would warrant, where there are no averments in the bill to which the evidence can apply.” Dorn v. Geuder, 171 Ill. 362; Chicago Public Stock Exchange v. McClaughry, 148 Ill. 372.
Appellee argues that bringing the suit was of itself an election by appellee, the holder of the note, to declare the principal sum due. That may be so, but the question is not one of fact or of substantive law. It is not whether in fáct the principal was due or not at the filing of the bill. The question is merely what was averred in that respect. We decide only a rule of pleading, that a party can not aid his pleadings by his proofs, or, in other words, can not make a better case by his proofs than he has alleged in his bill.
The decree of the Circuit Court is reversed and the cause remanded, with directions to that court to permit appellee to amend his bill and make additional proof, if he shall be so advised and desire.
Reversed and remanded with directions.
