— The complainant and defendant are brother and sister. A. Marshall, their father, was the original owner of the land, the subject of this suit, and lived on it until his death in 1886. In 1879, the land was sold under a decree in chancery, to satisfy a judgment debt of A. Marshall, the father; *141and Washington became the purchaser, bidding and paying the amount of the judgment under which it was sold. It does not appear that Washington ever obtained possession of the land. Just before the expiration of the two years after the sale, the land was redeemed from Washington. At that time, A. Marshall was so afflicted with disease, and disabled, as to be incapable of attending to business. The son, G. Humphrey Marshall, lived with his father all that time, and attended to his business. G. Humphrey carried the money to Washington, and redeemed the land, and took the latter’s deed in his own name as grantee. This deed is not recorded, and it is not shown that the father knew it had been made to the son, until shortly before his death, when he complained of it to his son. The title is still in G. Humphrey Marshall, and he is in possession.
In 1868, A. Marshall, the father, conveyed the land in controversy to his daughter, the complainant in this suit. She was then unmarried. She subsequently married Olds, and is now his widow. She filed this bill in her own name, and prayed that the title of the land be devested out of G. Humphrey Marshall, and vested in her. The asserted state of facts and law on which she founds this claim, and prays for this relief, may be stated as follows: First, that the deed from her father to her contains covenants of warranty, both implied and express, and is founded on a recited money consideration; that this, as between the parties, is a deed on valuable consideration, as distinguished from one merely voluntary, and constitutes the complainant a purchaser, not a donee. This legal position is well taken. — Bolling v. Munchus, 65 Ala. 558; Rutledge v. Townsend, 38 Ala. 706; Lawrence v. McCalmont, 2 How. 426, 445; 15 Curt. Dec. 178. Second, that whatever title and right to the land the father, A. Marshall, acquired after he executed the deed to the complainant, vested instantly in her by virtue of the covenants in his deed to her. This position is also well taken. — Chapman v. Abrams, 61 Ala. 108, 114; Blakeslee v. Mobile Life Ins. Co., 57 Ala. 205. Third, that the redemption of the land from Washington, though effected through G. Humphrey, was really with the money of A. Marshall, and title taken in the name of the son without the knowledge, and against the consent of the father. If this be so, there is a clear resulting trust in favor of the father, and equity does not hesitate to declare that G Hum- . phrey Marshall holds the title wrongfully, and in trust for A. Marshall, his father. — 3 Brick. Dig. 785, §§ 49, 50; Bibb v. Hunter, 79 Ala. 351.
On the foregoing postulates of law and fact, it is clear that *142the complainant, Mrs. Olds, has succeeded to all the rights ■ her father, A. Marshal], could have asserted; and if she has established the. requisite facts, it is no valid objection to her bill that it is filed in' her name. If the facts attending the redemption armed A. Marshall with an equity against G. Humphrey Marshall, the deed from A. Marshall to complainant transferred that equity to her.
There is some conflict in the testimony. G. Humphrey Marshall testified, that he redeemed the land with his own money, and took the deed to himself with the consent of his father, and of Washington, from whom it was- redeemed. Several witnesses testify, and make it clear beyond all question, that A. Marshall furnished one hundred and sixty-five dollars of the money — cash—with which the redemption was effected; and their contention is utterly irreconcilable with the son’s contention, that title was taken in his name with his father’s consent. The last interview with his father, of which we have any testimony, disproves his statement that his father consented that the title should be placed in his nam'e. The testimony of Tally, a disinterested wiíness, explains the transaction had with him. According to his version, the agreement was had with the lather, although the son was present. He trusted the father, and not the son. It was the father who agreed to deliver the crops or produce, and Tally’s promise to furnish the requisite funds to perfect the redemption was made to the father. There was in fact no loan from Tally. About cotton enough to make him safe in the money he paid out— $228 — had already reached him when he advanced the money. Row, although Humphrey aided in the crop, and helped to produce the cotton, it is manifest it was treated as the father’s transaction, the father’s cotton, and the money received for it as the father’s money. So, the proof satisfies us that the redemption was made with money that was treated as the father’s, and had been obtained by him under his agreement with Tally. If any of the cotton belonged to Humphrey, or if his father owed him on that account, this was at most a debt from his father, and gave him no interest in the land. It showed no right in him to take the deed in his own name, in the absence of proof that his father had so consented. The proof authorized a recovery. — Montgomery v. Givhan, 24 Ala. 568; Mosely v. Lane, 27 Ala. 62.
Hoes the bill, as framed, entitle the complainant to relief? In cases of this kind, in addition to the satisfactory strictness. required in the proof, it must conform in substance to all the material averments of the bill. — Lehman v. Locke, 62 Ala. 129, 133; Hatton v. Landman, 28 Ala. 137; 3 Brick. Dig. *143785, §§ 47 et seq. The bill charges that the avowed purpose of the father in arranging for the redemption was, that it should be for the benefit of Mrs. Olds, the complainant. The testimony disproves the intended benefit to complainant. But possibly this variance is immaterial, as equity declares such redemption to be for her benefit. The bill, however, charges that the father furnished one hundred and sixty-five dollars, and no more, of the redemption money, and ' that the residue was furnished by the said G. Humphrey Marshall to the said A. Marshall as a loan. It charges that with the money obtained and supplied the redemption was perfected. It is then averred that the said G. Humphrey has ever since had possession and use of the land, and that the value of the use and occupation has been five hundred dollars a year — much more than enough to repay him the money loaned to the said A. Marshall. To this end, the bill prays for an account of the rents and profits, and that it be declared that the said G. Humphrey has been more than repaid the sum so lent to his father. Now, while the result attained on each category of facts may possibly be the same, so -far as the recovery of the land itself is concerned, yet there is a marked difference in the line of proof necessary to establish the differing categories. And the measure of recovery of mesne profits is not in each case the same. We feel bound to hold that there is a variance between the allegations and proof, which is fatal to the complainant’s right of recovery under the present bill; and for that reason the Chancellor did not err in dismissing it, in its then shape.
The final decree of the Chancellor was rendered in vacation. It was a general order of dismissal, without reserving to complainant the right or privilege of moving for leave to amend. Under the ruling of the Chancellor as to the merits, the decree was right; for he, in effect, held that the case failed in its proof. We have reached a different conclusion, and hold that the proof is prima facie sufficient. The Chancellor’s decree-, however, was authorized, by the substantial variance between the allegations and proof, unless the bill was amended. This defect in the bill is amendable under our liberal system of amendments. — Code of 1886, § 3449, and note. The Chancellor erred, however, in making a final order of dismissal in vacation, without giving to complainant an opportunity to amend her bill, so as to make it correspond with the testimony. Gilmer v. Wallace, 75 Ala. 220; Gilmer v. Morris, 80 Ala. 78, 88.
The decree of the Chancellor is reversed, and a decree here rendered, ordering that unless within forty days after the cer*144tification of this decision to the Chancery Court complainant’s bill is so amended as to make it conform to the testimony, then her bill is to stand dismissed.
Reversed, rendered and remanded.