Faulk v. . Thornton

Merrimon, C. J. after stating the case: It is not the purpose of this action to recover possession of the land described in the complaint or any part of it, but its object is to recover damages occasioned by the alleged trespass of the defendant thereon. The action is in the nature of the action of trespass guare clausum fregit under the former method of civil procedure in this State, and the gist of it is the injury to the possession of the plaintiff. The general rule is that unless at the time the injury complained of was committed the plaintiff was in the possession of the land, trespass cannot be supported. Though the title to the land may come in question, yet it is not essential to the action in all cases that it shall. If the plaintiff shows a legal title to the land, such title draws to it the possession, if there be no adverse *319 possession, and if he be not in actual possession, he must show a legal title. London v. Bear, 84 N. C., 266, and the cases there cited; Harris v Sneeden, 104 N. C., 369; Roberts v. Preston, 106 N. C., 411; Chitty Pleading, 174. The complaint first alleged that the plaintiff is the owner and in possession of the lot of land particularly described on which his brick-liouse is situate, but it was not insisted on the-trial, nor was there any evidence to prove, that the alleged trespass was committed on that land. Any question in that respect may therefore be put out of view. And so also the contention as to the title to and possession of the rooms situate above the “ alleyway” alleged in the complaint, may be put out of view here, because there was no evidence to prove any trespass in the same, and the Court should have so instructed the jury. As to the alley-way mentioned, it must be observed that the plaintiff does not in the complaint allege his title to or possession of the same; he simply but distinctly alleges an easement in and through it that himself, and those under whom he claims, had ever been accustomed to have, use and enjoy for a long period of time. The case settled on appeal states that “ there was conflicting evidence as to the possession of the alley-way, and also as to whether the alley-way was open for the public until a short time before the bringing of this action;” but nothing is said of evidence to prove the plaintiff’s private right to use and have an easement in the same. On the trial, however, he contended that he had title to the whole alley-way and produced evidence going to prove the same The defendant objected to the reception of such evidence, upon the ground that the plaintiff had not alleged title to or possession of the alley-way. The Court overruled his objection, and he excepted. We think the objection to the evidence of title should have been sustained by the Court. The easement alleged in the complaint was, in its nature, substance and purpose, distinct and very different from title to the land. The alie- *320 gation of it by strong implication admitted title to the land on and over which it was situate in the defendant; and very certainly it did not at all put him on notice to defend and prepare to defend his title to the same as a pleading alleging a cause of action should do. A chief purpose of pleading is to enable parties to litigate their rights intelligently and fairly and prevent shift and undue advantage. And to this end it is a well settled rule that there must be allegata et probata. The Court should not receive evidence that is not pertinent in some aspect of material allegations in the complaint, nor should it receive evidence to prove a cause of action not alleged. McKee v. Lineberger, 69 N. C., 217; McLaurin v. Cronly, 90 N. C., 50; Brittain v. Daniels, 94 N. C., 781; Greer v. Herren, 99 N. C, 492. This is not the case of variance between the alleged cause of action and evidence to prove the same contemplated by the statute (The Code, § 269 and 270). The evidence in this case was received to prove a cause of action not alleged in the pleadings at all. The plaintiff was allowed to introduce evidence to prove that he was the owner of the land, and therefore in possession of the same, in the absence of adverse possession, when he had not alleged any cause of action. Carpenter v. Huffstler, 87 N. C., 273, and the cases cited supra. There are numerous other exceptions to the pleadings, issues, evidence, instructions given to the jury, and judgment, more or less in confusion, to which we do not deem it neccssai-y to advert. They may be obviated by proper amendment of the pleadings. What we have said is sufficient to show that the defendant is entitled to a new trial, and we so adjudge. Error.