Rose v. . Patterson

*61 Stacy, C. J. In this action tbe plaintiff seeks to bold tbe defendant personally liable for bis claim against tbe estate of A. S. Patterson, deceased, to tbe extent of property received by tbe defendant from tbe decedent. C. S., 59, et seq. Tbe character of tbe action was considered on two former appeals, reported in 218 N. C., 212, 10 S. E. (2d), 678, and sub. nom., Thomasson v. Patterson, 213 N. C., 138, 195 S. E., 389. Tbe evidence on tbe trial, if inculpatory -at all, points only to a devastavit on tbe part of tbe defendant as executrix of tbe estate of A. S. Patterson, deceased, and not to any personal enrichment at tbe expense of creditors. Tbe nonsuit is justified on tbe ground of a variance between tbe allegation and tbe proof. S. v. Jackson, 218 N. C., 373, 11 S. E. (2d), 149; S. v. Franklin, 204 N. C., 157, 167 S. E., 569; S. v. Harbert, 185 N. C., 760, 118 S. E., 6. “Tbe parties must allege their cause of action or defense, and prove tbe same on tbe trial, and a variance arises when tbe evidence offered does not correspond with tbe allegations of tbe pleading.” McIntosh, Practice and Procedure, 517. Tbe refusal to remove tbe case to Swain County for trial was upheld on tbe allegations of tbe complaint. 218 N. C., 212. Tbe case is to be tried on tbe pleadings. Green v. Biggs, 167 N. C., 417, 83 S. E., 553; S. v. George, 188 N. C., 611, 125 S. E., 189, and cases there cited. Affirmed.