Daniel v. Collins & Co. , 57 Ala. 625 ( 1877 )

STONE, J.

1. The bill avers, that when Daniel purchased the lands in controversy — 1868—Ray put him in possession. Speaking of the one hundred and twenty acres which Daniel claims was rightly left out of the conveyance to Collins & Co., the language of the bill (section 8) is as follows: “ Orator avers that these lands are all that is left, free from incumbrance, which he desires to retain as a homestead for himself and family.” The above comprises all that is averred in the bill, tending in the remotest degree to show that the lands in controversy are, or ever were, the homestead of complainant, Daniel; and the proof is still less satisfactory on this point. It is no where said, or even intimated, that the homestead is on the lands claimed by Daniel, or even on any part of the tract purchased from Ray. Failing, as the bill does, to aver that the lands sought to be recovered by Daniel were, or ever had been, occupied by him, no question of homestead is raised by this record.—See Miller v. Marx, 55 Ala. 322.

2. The present bill is for a specific performance of an alleged agreement. In such suits, great accuracy of averment, and striot, corresponding proof are required. Loose and inaccurate pleading, or variant or merely persuasive testimony, is alike5*fatal to the relief prayed. The complainant’s case must be clearly made out in harmonious pleading and proof, to entitle him to a decree.—1 Brick. Dig. 692, §§ 768, 769; ib. 695, §§ 801, 804, 805.

3. iVnd S9 it is said, with some inaccuracy of expression, that it is discretionary with the court whether it will, in any case, enforce specific performance. Perhaps a better definition of the rule is, that the court will never grant this relief, in enforcement of an unconscionable bargain, or where the decree will work undue oppression to the defendant, or where the proof of right is not clear. Courts, in such cases, will not grope their way, on inconclusive probabilities.—1 Brick. Dig. 692, §§ 758, 759, 760; ib. 69, §§ 775, 776, 777, 778; 1 Sto. Eq. Ju. § 742, et seq.; Lead. Cases in Eng. 4th Amer. from 4th London ed. 931, 944, 950-8, 971, 978,1011.

4. In the present record there are incompatibilities of averment as to the numbers of the land, which are themselves embarrassing. This, however, may have arisen from errors in copying, and we place our decision on another ground. The testimony is wholly irreconcilable. One witness, Hubbard, gives a very clear and reasonable version of the transaction, and fully sustains the two defendants in their testimony. He is the only witness examined who is entirely disinterested, and disconnected by interest or blood with the matter in dispute. We concur with the chancellor in holding that his testimony generates too much distrust of the equity of complainant’s claim, to justify a decree in his favor.

Decree of the chancellor affirmed.