The legal title to the land which is the subject of. this suit, was 'in Robert W. Smith. No attempt is made to trace it further back, nor to show that he held' otherwise than in his individual right. He and his wife conveyed the lands by deed to C. W. Butt, in express trust to hold for Charles Walshe and for him, Smith. The deed charges the trustee with no duties. The effect of this, it is conceded, is to vest the legal title in- Walshe & Smith, disrobed of the attempt to create a trust. — Code of 1876, §’ 2185 ; Mason v. Pate, 34 Ala. 379. Neither the title papers nor the pleadings show that Walshe and Smith held in any special capacity: The result is, that they, must be treated as tenants in common: Subsequently,' Butt conveyed the lands to one Glover, in payment of a debt due to him from Walshe, - Smith & Co., and Glover devised them to Mrs. Sterling and her four sons. 'The present bill is filed by the sons and the administrator of their mother; and seeks to establish un equity in the lands, against purchasers at' a bankrupt-sale, made by the assignee of Walshe and Smith.' '
The averments of the bill, showing the conveyance from Butt to Glover^-an 'indispensable link in complainants’ equitable claim — are in the following language: ■ “ That on the day and year last aforesaid [August 31; 1873], the said Charles Walshe and Robert W. Smith made and entered-into 'a-contract with the-said Edwin A. Glover, whereby they agreed' to ‘Sell, and said Glover agreed to purchase said lands, in full payment and satisfaction of twenty thousand dollars of the aforesaid indebtedness, and to make, or cause to be made and executed to said Glover-, good and sufficient titles in fee simple to said lands ; and that said Charles Walshe and 'Robert W. Smith assured said Glover, that the legal title to said lands was in the said Cary W. Butt, in trust for them, and that a deed of conveyance executed to said Glover for said lands would be sufficient to invest said Glover with a good and sufficient title to said lands, as by said contract is provided.” The bill then avers that the title was so made by Glover to Butt. This averment *442is substantially put in issue by unsworn answer of the defendants.
The only testimony offered, tending to prove the truth of this averment, is that of Charles Walshe. He testified as follows : “ Said deed was executed by Mr. Butt at my instance and request, as a member of the firm of Walshe, Smith & Co., and at that time I was managing the business of my firm. My partner, Mr. Robert W. Smith, was an invalid for several months about that time, and did not attend to any business. I do not recollect of any positive expression of approval of the making of that deed to him.” There is no proof that Robert W. Smith was ever informed of the conveyance to Glover. True, in his cross-examination, Walshe testified, that “ the firm of Walshe, Smith & Co. was at that time indebted to Mr. Glover, and the said deed to Cary W. Butt in trust conveyed to him property belonging to Walshe, Smith & Co., for the purpose of paying a debt due to Mr. Glover from that firm.” There is, however, no averment in the bill to let in this proof ; and, if the facts be averred and shown as Mr. Walshe testifies to them, it would still present a question, not necessary to be here decided, whether Walshe alone did, or could, create an equity in Mr. Smith’s part of the land. — Espy v. Comer, 76 Ala.
It is contended for appellant, that the foregoing discrepancy between the averments and the proof presents only the question, often met, of a suit for the whole, with proof of right, the same in character, to only a part of the thing sued for. That is not the question this record raises. The averment of the bill, not sustained by the proof, is a necessary link in the chain of averred facts, on which complainants found their equitable right to relief. Between such averred facts and the proof, there must be harmony in all that is of substance. To authorize relief, sufficient facts must be averred, sufficient proof made, and the averments and proof must agree. Less than this last requisite is a fatal variance. — Floyd v. Ritter, 56 Ala. 356 ; Meadors v. Askew, Ib. 584; McKinley v. Irvine, 13 Ala. 681; 1 Brick. Dig. 743, §§ 1538, ’39, ’40; Winter v. Merrrick, 69 Ala. 86; Munchus v. Harris, Ib. 506; Conner v. Smith, 74 Ala. 115 ; Young v. Hawkins, Ib. 370; Junkins v. Webb, 72 Ala. 303; Hooper v. Strahan, 71 Ala. 75; Lewis v. Montgomery Mut. B. & L. Asso., 70 Ala. 276 ; Helmetag v. Frank, 61 Ala. 67 ; Schaffer v. Lavaretta, 57 Ala. 14 ; Rea v. Longstreet, 54 Ala. 291.
There are other grave questions presented by this record, upon which we intimate no opinion whatever. — Banks v. Ogden, 2 Wall. 57; Baily v. Glover, 21 Wall. 342; Jenkins v. International Bank, 106 U. S. 571; Bump on Bankruptcy, 10th ed. 558 et sea. Lest, however, we may do the complainants an *443unwitting injury, we will so for modify the decree of the chancellor, as to make it a dismission without prejudice.
So modified, the decree of the chancellor is affirmed.
Clopton, J., not sitting.