Russell v. Conners

Mr. Justice Wilkin delivered the opinion of the Court: Conceding every allegation of the hill of appellee to have been supported by proof, it is clear from the foregoing statement of facts that if Knox College was complaining of this decree it could not be sustained. But as it suffered a default below, and has not joined in this appeal, our only inquiry must be, is it sustained by the allegations of the bill and the proofs, as between appellant and appellee. Clearly, appellee’s claim to the north half of said three lots can not be upheld on the ground of a parol partition between himself and appellant. The bill makes no such case. It shows that there never was a tenancy in common between the parties. It proceeds upon the theory that each purchased from the college a distinct half of said lots. The evidence to support this theory, though not satisfactory, is perhaps sufficient to support the decree, if that was the only question involved. The insuperable objection to the finding of the circuit court on this theory is, that it gives appellee more than he claims by his bill, and more than the evidence shows him entitled to. By the bill he only claims the right to a deed to what he calls his half, upon his paying one-half of the purchase money of the three lots according to the terms of said contract,—that is to say, $225, with eight per cent interest on so much of that sum as he did not pay at the date of the purchase. This interest the master’s report shows to have been at that date $23.67, making the whole amount which complainant should have been charged with, $248.67. Having paid but $190, as averred in the bill, he still owed $58.67 instead of $23.30. The master, in stating the account, allowed him payments to the amount of $200.50, or $10.50 more than he claimed in his bill, and also $17 for the use of his half of the property, on his evidence that the husband of appellant had ejected him from the same. For this $17 item no claim whatever was made in the bill, and for that reason,, if no other, it was improperly allowed. It also appears from a list of complainant’s credits and items of accrued interest attached to the master’s report,, which is made the basis of his conclusion that but $23.30 is-still due, complainant is allowed credits to the amount of $210.50,—$10 of which there seems to be no proof of whatever, and which, from other parts of said report, is shown to-be a mistake. It is clear that while the amount is not large, appellant has been improperly charged with money.which-she never received, and which, by complainant’s bill, it is not pretended she has received. • We think the decree of the circuit court-is erroneous, both-because it is not supported by the allegations of the bill and, because it is not warranted by the proofs. Decree reversed.