It is with some reluctance that the court has concluded to affirm the judgment in this case; for though not entitled to be relieved to the extent to which they ask; or in the manner attempted in their complaint, we can see from the whole case that the plaintiffs have a right to some relief in th premises.
The sale by the administrator was expressly confined to the reversionary interest in the land, dependent upon both dower and homestead — the first embracing one third of the tract, and the latter the whole. As to the demands of the plaintiffs (there being no other property to satisfy them) the allotment of the homestead was a nullity, and since the administrator's deed could convey no more than was actually sold, it is manifest that some portion of the estate, to wit, that part of the land which is outside of the dower and embraced in the homestead, remains yet undisposed of, and subject to the claims *Page 221 of creditors; and the only question is, whether, considering the state of their pleading, the court should have given them this relief in the present action.
This point is the only one which the counsel for the plaintiffs seriously urged before us: their argument being that the testimony offered, while at variance with the allegations of the complaint, still tended to show that the plaintiffs were entitled to relief against the defendants, and that the Code, in such cases, did not permit it to be altogether rejected, and judgment given against the party, as for the want of evidence, but required the court to admit the testimony, though variant, and then, by the allowance of proper amendments in the pleadings, to make the two consistent.
Conceding the liberality of the Code in the way of allowing (277) amendments, we can discover no where in this record any request, coming from the plaintiffs, to be allowed to amend their complaint, and we could not think of holding it to be the duty of the court, unsolicited, to thrust this advantage upon a party, and that a failure to do so, on its part, would amount to an error in law.
But more than this, and considering the question as one of legal right on the part of the plaintiffs, we have upon further reflection come to the conclusion that the testimony was properly excluded, and the judgment in the court below in all respects correct.
Liberal towards amendments as the code-procedure may be, it fails to provide for a case like this of the plaintiffs, wherein the variance is, not so much between the pleadings and the proofs, as in the substance of the two causes of action themselves — the one as stated in the complaint, and the other as in fact existing.
The right to recover, as set out in the complaint, arises out of and depends upon the fraudulent practices of the defendants, and yet the plaintiffs would recover upon proof of a cause wholly freed of every contrivance, and of which the alleged fraudulent conduct of the defendants forms no part.
It is an instance, therefore, in which the allegations of the cause of action are unproved, not as to some particulars only, but as to its entire scope and meaning, and rightly falls under section 130 of the Code which forbids the allowance of any amendments in such cases.
For the court to hold otherwise, and permit a plaintiff to recover upon proof of a cause of action, not only differing from but wholly inconsistent with the one alleged in his complaint, would be to dispense with everything like notice to the defendants, and thus defeat the very object sought to be attained by requiring the parties to file their pleadings. *Page 222
(278) The rule that the allegata et probata must correspond, obtains under the Code, the same as under the old system, and it is as much incumbent upon a plaintiff to prove his case as alleged, as it ever was. The only observable difference between the old and the new system is, that the latter has introduced a new rule for determining what a variance is, and its consequences. A variance, so slight and unimportant that the adverse party cannot have been misled by it, is deemed immaterial, and the court will either order an amendment without terms, or will consider the pleading as if amended, and permit evidence to be given under it. And even in the case of a material variance, so substantial that the adverse party may have been misled by the averments, still, if the proofs have an apparent relation to and connection with the allegations, the court will allow of an amendment, though, upon terms. But where the proof establishes a case wholly different from the one alleged and inconsistent therewith, then no amendment is permitted, but the cause of action must fail. C. C. P., Secs. 128, 129, 130, and Pomeroy on Rem., Sec. 553.
The case of the plaintiffs falls clearly within the principle last stated, and as the only effect of the evidence offered could be to prove a case wholly at variance and inconsistent with the case stated in the pleadings, it was properly excluded by the court.
We are unable to perceive any disadvantage to which the plaintiffs were put, by reason of his Honor's refusal to order the account to be taken of the administration of the estate. The sole object of the action is to impeach the sale of the lands and to procure a resale for the payment of debts, and, as the defendants admit, that so far as assets had come to the hands of the administrator, they had been fully and rightly administered, the plaintiffs could need nothing more in this regard to enable them to prosecute their action.
No error. Affirmed.
Cited: McLaurin v. Cronly, 90 N.C. 53; Kron v. Smith, 96 N.C. 391;Brown v. Mitchell, 102 N.C. 374; Davis v. Stroud, 104 N.C. 489; Maggettv. Roberts, 108 N.C. 177; Faulk v. Thornton, 108 N.C. 320; Craven v.Russell, 118 N.C. 565; Reynolds v. R.R., 136 N.C. 349; Wright v. Ins Co.,138 N.C. 499; Alley v. Howell, 141 N.C. 115; Adickes v. Chatham,167 N.C. 683. *Page 223
(279)