Clements v. Kellogg

COLLIER, C. J. — 1. The testimony makes out a case very different from that stated in the bill.' The defendant in error, seeks an account of one half of the profits derived by the plaintiff’s intestate, from the occupancy of six thousand four hundred arpens of land, and the employment of a saw mill situated thereon. The demand is made upon the allegation that Joshua Clements the intestate, and Theron Kellogg, were tenants in common of the land and mill, and entitled to an equal interest in the same. The proof ¡none of the depositions is, that the plaintiff’s intestate occupied a tract of six hundred and forty acres of land, and employed a saw mill thereon (all which belonged to the father of the defendant) from the year 1824 to the year 1833, when he died. The testimony of the other witness is, that Joshua Clements had possession of the land and mill from the death of Theron Kellogg, up to the time of his death — and that the annual average value of the land and mill, was twelve hundred dollars. It is a well settled rule not only at law, but in equity, that the allegata and probata must correspond with each other. This rule has been recognized by repeated decisions of this court. In Morgan’s executrix v. Crabb (3 Porter’s R. 470) it was ruled that no relief could be given, but on proof pertinent to the statement of facts relied on to obtain it. A party is no more entitled to relief upon evidence, without the material allegations, than on such allegations without sufficient proof. In Goodwin v. Lyon (4 Porter’s Rep. 297) the court say, •however strong may be the proof of a complainant, and however clear his title to the aid of the court, it is wholly immaterial, if the allegations of his bill are not in harmony with his testimony — it cannot be received and regarded by the court. To the same effect is Duren v. Walker & Parsons (5 Porter’s Rep. 345; see also, 3 Litt. Rep. 339; 10 Wheat. Rep. 189; 6 Har. & Johns. Rep. 288; Eng. Cond. Ch. Rep. 544.) In the case at bar, instead of proving the occupancy of six thousand four hundred arpens of land and a saw mill, of which Joshua Clements and Theron Kellogg were tenants in common, •the proof is, that the plaintiffs intestate occupied six hundred and [334] forty acres of land with a saw mill thereon, of which the defendant’s father was the sole proprietor. The mere recital of the bill and proofs, discover at once, an entire want of harmony between the allegata and probata. It may be said of the bill, that the statements it contain may be true, but they are not proved — so in regard to the testimony, it clearly shows that the defendant in error, has a just cause of complaint against the plaintiff; yet, the allegations of the bill, do not authorize its admission in evidence. 2. It is not denied, that both the plaintiff and Mary Clements were made parlies, as administrator and administratrix of Joshua Clements, the original party — in fact, the record so states it. Where more persons than one, administer on an estate, they are all alike its representatives, and it is not allowable to sue any number less than all, where they are all within the jurisdiction of the court, eertainly not; without disclosing some special reasons to show that the character of the relief sought made it unnecessary to join them. (Story’s Equity Pleading, 193; Wms. & Ivey, executors v. Sims et al., 8 Porter’s Rep. 579.) The proposition stated results from the principle of the common law, which esteems several executors or administrators as but one person in representing the testator or intestate. Wheeler et al. v. Wheeler (9 Cow. Rep. 34.) Could Mary Clements be regarded as a mere nominal party, it is possible that the omission to join her in the decree with the plaintiff in error, might be regarded as an irregularity, which would not prejudice the defendant — but we are not permitted thus to consider her. Upon both grounds the decree of the circuit court is reversed, and the case remanded to the court of chancery, that the complainant may obtain leave to amend her bill, if she thinks proper, and proceed with the cause against all who have administered on the estate of Joshua Clements deceased, unless some particular reasons exist, why they should not all be joined. The costs of this court are to be paid by the defendant in error.