Peckham v. Buffam

Christiancy J.: The bill makes one case, and the evidence another. Had the case made by the bill been supported by the [531] evidence, it would have entitled the complainant to relief; and perhaps the same may he said of the case made by the evidence, had it been founded on an appropriate bill; but upon the latter alternative we express no opinion. The hill bases the claim to relief entirely upon an alleged error in the village plat referred to for description in complainant’s deed; while the evidence shows that the plat was correct, and made in compliance with the act, “ as the lots were used and occupied ” when it was made; hut that the description in the deed was erroneous, in referring to the plat for the description of the land intended to he conveyed. It is plain, we think, that these questions present very different issues, and that the latter is not fairly included in the former. Complainant is only entitled to relief secundum, allegata et probata; 'and the hill is not sustained by the evidence. We do not therefore think it necessary to refer to any of the other questions- presented by the case.' The decree of the Circuit Court in Chancery must he reversed, with costs to the defendant in this Court and' the Court below, and the bill must be dismissed without prejudice. The other Justices concurred.