The defendants, in their answer, admitted the fact of the plaintiffs having obtained a judgment against Jesse James, and of the levy upon the horses claimed by Warren; but they denied having, by any representations, induced the plaintiff to press a sale of those (46) horses; on the contrary, they averred that the plaintiff had, of his own accord, applied to the defendant Moses to sell, and to the defendant William to buy; that the defendant Moses refused to sell under the execution unless the plaintiff would indemnify him, which the plaintiff then verbally agreed to do; that the defendant William refused expressly to purchase unless the plaintiff would give him a written indemnity against the claim of Warren, which the plaintiff agreed to do, and which was then drawn and executed; that Warren had recovered of the defendant William the value of the horses, and the plaintiff having absconded, an attachment against his property was sued out, upon the indemnity given the defendant William; that before the return day of the writ the plaintiff applied to the defendant William and entreated him to take it up, stating that if returned it would only cause an accumulation of costs, and averring his willingness to have his (the plaintiff's) property sold to satisfy the execution in favor of Warren against the defendant William; that this offer was accepted, and an agreement to that effect drawn and signed by the plaintiff; that in pursuance of this agreement a sale of the property of the plaintiff was advertised by him, at which many people attended; that the plaintiff attended, and delivered the property to the crier, who was the defendant Moses, and who acted at the request of the plaintiff; that the personal property of the plaintiff was very small, and did not produce a sum sufficient to *Page 47 satisfy the execution, and thereupon a tract of land, containing 125 acres, was offered for sale, but the plaintiff Elizabeth refusing to join in the conveyance, the life estate of the plaintiff James was sold, and purchased by the defendant William for $20; that these sales left about $80 of the debt unsatisfied, which was more than the plaintiff James's life estate in the other tract, upon which he lived, would sell for, and that the defendant William, on the evening of that day, agreed to buy the tract for that sum if the plaintiffs would join in a deed to him; that the plaintiffs consented to these terms, upon condition of being permitted to redeem within two months, which was agreed (47) to, and thereupon a deed was executed by the plaintiffs to the defendant William for the land, but that the plaintiff Elizabeth had subsequently refused to consent to the same, upon her privy examination; that no clause for redemption was inserted in the deed, not for any fraudulent purpose, but because no expectation had been entertained of selling any title but that of the plaintiff James, and the deeds had been prepared before the sale. The defendant William denied positively that the agreement for redemption extended to both tracts, and insisted that it was confined to the home plantation. He admitted a tender of $100 by Redmond, and a demand for a reconveyance of both tracts, and his refusal to comply; but averred that he then stated to Redmond that he was willing to reconvey the home tract upon the repayment of $80, but that this proposal was rejected by Redmond.
Replication was taken to the answer, and many depositions filed. They all supported the answer, except as to the fact whether the agreement for redemption extended to both tracts, or was confined to the home plantation. Upon that point the evidence was contradictory. The Court would gladly in this, as in every case, administer justice according to the true rights of the parties, as collected from any part of the pleadings or proofs. There seems to have been an agreement for the redemption of the home tract, and if the frame of the bill put it in our power, that would be decreed. But the case is there stated in a manner so foreign from the truth, and with a view to relief so entirely different, as not to put in issue the question of redemption, and render any of the examination of the witnesses to that point relevant or competent, or even to authorize a decree upon a particular admission of the defendants.
His Honor here repeated the substance of the bill as above stated, and proceeded as follows: The first observation which (48) *Page 48 the case, thus stated, calls for is that the wife was improperly made a plaintiff. Her rights were not affected, as she did not execute the deed of trust, or any other conveyance, according to the charges of the bill. The deed, if any, was that of the husband, and operated upon his own estate only. For which reason the bill of the wife would necessarily be dismissed.
But upon the answer and proofs it turns out that not one material allegation of the bill is true. There was no deed of trust, nor a conveyance of any sort, obtained from Browning before the sale. There was no pretense of selling under such authority. There was no fraud or deception in obtaining a sale, or in the defendant's purchase. The answer states, and witnesses on both sides prove, that for a just demand the defendant William was about suing Browning, who besought him not to do so, and agreed to raise the money by a sale of his property without suit. That accordingly he himself advertised the sale, and was present at it; that he delivered the articles for sale, and got the defendant Moses to cry them; and that, at such public sale, the defendant William purchased one of the tracts of land, and on the evening of the same day, by agreement and deed, made and executed in the presence of a crowd of people, purchased from Browning and wife the other tract. This obviously answers the whole bill; and being proved to be true, annuls all the equity alleged.
But the answer, going beyond the matter of the bill, admits that at the sale the defendant William purchased one of the tracts of land at $20, and took a conveyance from Browning, whose wife would not join in the sale and conveyance, which caused it to sell so low. It further states that $80 yet remained to be raised, and that Browning's life estate in the other (home) tract would not bring it; but that he (William), proposed to give that sum for it, if the husband and wife would both convey that tract in fee to him; and it further admits that this last tract was to be subject to redemption by Mrs. Browning, if she (49) should repay the same sum within two months, and that under that agreement Browning and wife did convey the home tract, though she refused to execute the deed for the other, and hath since refused to be privily examined to that which she did execute. To this statement there is full proof by many witnesses on each side, in every particular but one; that is, the point whether the agreement for redemption extended to both tracts, or related to the home tract alone. For it seems that Mrs. Browning's father afterwards tendered $100 on her behalf, and claimed a reconveyance, which the defendant refused as to the first tract, but offered for $80 as to the home tract. But that *Page 49 was not accepted unless both pieces could be got; and thereupon this suit was brought. Upon the proofs on this disputed point, the preponderance is, in the opinion of the Court, with the defendants, were it proper to consider them. But as they are manifestly out of the pleadings, they cannot be heard; for they are not material to any issue between the parties, and consequently have no sanction for their truth.
Will the answer of the defendants authorize a decree to the extent of the admissions made in it? In some cases it might; for it is not necessary that the bill should precisely allege every matter in accordance with the proofs, or the admissions of the answer. But it is requisite that its statement should have some semblance of the reality, and that an admission in the answer, to be acted on, should have reference to or bearing on the case made in the bill, and not be in entire avoidance of it. Here a simple question of redemption, in which the real controversy is confined to the single point of fact whether one or two tracts of land should be redeemed, is altogether disguised, and turned into a case of aggravated fraud, made up of falsehood, oppression, breach of confidence, treachery, and undue advantage taken of an illiterate man; on which is founded a prayer to cancel the deeds, or for an absolute reconveyance. The Court cannot give relief contrary to that asked for, and on a case, though appearing in the answer, standing directly opposed to that stated by the plaintiff. When the plaintiff asks us to rescind a contract upon a fraud of this sort, we (50) cannot affirm an essentially different contract, and decree relief on it as affirmed. Upon a case and prayer to cancel deeds we cannot set them up upon the ground of a fair, specific agreement for redemption, and decree such redemption. The charge and the admission are nothing alike, and do not relate to the same transaction. It is not like holding fraudulent deeds to be a security for advances under them. Justice to defendants demands this much at least from the Court, that they should be enabled from the allegations in the bill to form some intelligible notion of the ground of complaint and the nature of the redress sought. And a respect for the perspicuity and certainty of judicial proceedings and professional proficiency likewise prescribe the duty to the draughtsman to put into the bill such statements as will convey to the Court, at least an outline of the case, and some idea of the principle on which the relief is sought.
To give any relief in such a case as the present would be allowing a latitude or laxity of statement incompatible with the rules of equity pleading, with the case of the Court, and a just regard to the rights of the defendants generally. Indeed, it might be against the interests of *Page 50 the plaintiffs themselves; for upon a proper bill they may be let into proof, and be able to prove that both tracts were included in the agreement for redemption.
The bill must, therefore, be dismissed at the cost of the plaintiff James Browning. No costs are given against the wife, because the suit is founded on matter happening altogether during coverture, in which her interest, according to the bill itself, is not in the least concerned. It is not considered her suit, therefore; and it is supposed that the defendants' costs are sufficiently secured by the prosecution bond. At all events, the wife was improperly, and without her consent, made by her husband, or the solicitor, a party, as far as appears to the Court; and therefore costs are not given against her.
PER CURIAM. Bill dismissed.
(51)