Floyd v. Jones

Patton, .Judge : “The bill charges, that the note in controversy was obtained by the appellee either by fraud, accident or mistake, and that the endorsement on said note purporting to be dated October 20,1877, is a falsification, and that it is not the original endorsement then made. Both of these charges are denied in the answer; and no proof whatever is offered tending to show, that either is true. The evidence in the case does show, that at the time the deeds were executed, appellee was present, and that' the distinct agreement was, that all the notes held by John N. Floyd on one of the appellants, Hibbs, were to be delivered to the appellee, Floyd, in consideration of her joining in said deeds, and that he knowing, that that was the contract, fraudulently concealed from her the fact, that he was the assignee of one of them, giving as a reason subsequently, that he concealed the fact for fear, that if it was known, she [365] would treat her husband badly. Doubtless had the allegations of the bill warranted such a decree upon the facts, Jones would have been compelled to surrendér this note, upon the principle'that where a man, who has a title and knows it, stands by and either1 encourages or does not forbid the purchase by an innocent person, he and all claiming under him shall be bound by it. This seems to be a just punishment for his concealing his right, by which an innocent person is drawn in to lay out his money, or as in this case to convey away valu-ble property. Engle v. Burns, 5 Call 463. “But in this case there is no allegation in the bill,. upon which such evidence could be heard. The allegation is, that he obtained the note by fraud, accident or mistake. The proof shows, that he obtained it lawfully by regular assignment long anterior to the time of executing the deeds, nor is the charge of spoliation sustained by any testimony. It is a case then, in which the allegations of the bill are not supported by any proof, and in which the proof would justify relief, were there any allegations, upon which that proof could be heard. A party will not be allowed to recover upon a casé proved essentially differing from that alleged in the bill. Antony v. Leftwich, 3 Rand. 238. Although the complainant makes out in evidence a good case, which under other circumstances would secure the interposition of a court of eqnity, yet if it be not the case made by the bill, it will not support the bill. Jackson’s assignees v. Cutright, 5 Munf. 308; 2 Bob. (old) Pr. 287, 288; Borer on Jud. Sales 374. Baugher v. Eiehelberger, 11 W. Va. 217. “I am of opinion to affirm the decree of the court below with costs to the appellee.” The decree of the circuit court of the county of Marion rendered in this cause on the 11th day of November, 1879, it seems to us for the foregoing reasons is not erroneous and must therefor be affirmed; and the appellee must recover against the appellants $30,00 damages and his costs about his defence of this cause in this court expended.„ Judges Green and Johnson Concurred. DecRee Affirmed.