Drury v. Conner

' The opinion of the court was, delivered at this term by Martin, J. The court has carefully examined the record in this case, and think the decree of the Chancellor ought to be reversed. Although the testimony does not establish the complainants’ claiia to the extent stated in the bill, it clearly" proves a contract between William Conner and Frederick Mills, for one fourth part of Oliver’s Meek-, that the purchase money was paid by Mills., and the possession of the land permitted to be retained by him, under the contract. The bill states, that Mills had a life estate in all the, tract called Oliv&r’.s Neck, the remainder in fee being in Conner, and that Conner, sold to Mills all his interest in the said land; that the purchase money was paid by Mills, who retained the possession of the ‘land until his death, and since his death the same has been held by his representatives. The answers filed to this bill deny all knowledge of the sale. The respondents rely upon an answer filed by their father, William Conner, to a bill against him in his life-time, and the statute of frauds, and leave the. complainants to their proof. The answer of William Conner, the father, is not legal evidence in this cause, and therefore no reliance has been placed on it in forming our decision, The answers of the, respondents to this bill, professing a want of knowledge of the transaction, cannot be considered as evidence against the contract; their only legal effect, is to cpmpel the coajr [292] plainants to produce testimony to establish i,t. Three witnesses have been offered for that purpose by the complain» ants, and two have been produced,by the respondents. Some facts are established by this testimony, beyond contradiction. They all agree that Mills was, in possession of this tract of land; that he held three-fourths of it for life, as tenant by the curtesy. They also prove a-contract between Conner and Mills for the sale of this'land, but they differ as to the extent of that contract. The witnesses for the complainants set up a contract for the sale of the whole tract. The respondents prove a sale of one-fourth part of it.. The evidence given on the part of the complainants is. ■uncertain, contradictory and unsatisfactory, and as the-chancellor correctly observes, a part of it highly improbable and suspicious. But what objection can pi’evail against the testimony of Mr. Weems? He is a witness produced and relied on by the respondents, themselves.. No attempt has been made-to impeach his character; he appears to be conversant with the whole transaction; he was called on-as a common friend; he received his information from, both parties, and his attention Was particularly directed to this subject. Mr. Weems declares, that both Conner and Mills had informed him there was a sale of one-fourth part of this land by Conner to Mills, and that Mills had. paid all the purchase money for it. This is a witness produced by the respondents, and appears to us lobe conclusive upon, th cm. How then could: the- chancellor decree that the complainants were entitled to no relief in equity? Thai they were note, entitled toa conveyance of the whole tract, we, concur with him in opinion; but we clearly think they were entitled' to the conveyance of the one-fourth part of it. The whole purchase money waspaid, and the possession, although not delivered at that time by the vendor, (which could not, be done, the vendee being then in possession,1) was permitted to be held and retained by Mills. This, under the circumstances of the case, was equivalent to an actual delivery, and with the payment oí the purchase money, took it .out of the statute of frauds. It is certainly a correct principle b'oth in equity and at law, that the allegata and probata must, to a certain extent, agree. [293] The parly shall not ba permitted eilber at law, or ia equity, to set up in his declaration or bill, one contract, and obtain relief on another of an entire different character. This would be groat injustice — -1† would take the tie, fendaut by ^surprise, and might deprive him of property, which he had no opportunity to defend. But where the question is only the extent of relief, innumerable cases may be produced, where the plaintiff may be permitted to recover only part of what he claims. In this case the respondents cannot complain of surprise or want of opportunity to defend, for our decree is founded on the testimony offered by them. If a doubt, however, could have been enter» tained upon this point, it is put to rest by a decision of this! court, in the case of Graham & wife against Yates & others, (ante 229,) where a bill was filed upon a supposed contract for the sale of a whole square of Hampstead Hilt. The chancellor decreed, that the complainants were not entitled to the whole square as stated in their bill, but only to a part of it, and decreed a conveyance of that part, upon the payment of the purchase money. Tisis decree was affirmed by this court at the present term. The counsel may prepare a decree of this court,, reversing the decree of the chancellor, and decreeing a convey" anee of one undivided fourth part of Oliver’s Keck, by whatever name it may be called, lobe made by the appellees to the appellants, to be held by them as tenants in common. DECREE REVERSED.