Hooper v. Strahan , 71 Ala. 75 ( 1881 )

SOMERVILLE, J.

It is insisted that the decree in this case is erroneous, because it was rendered in vacation, on September 13, 1877, without the agreement of the parties or their attorneys. In support of this view the case of Rogers v. Torbut, 58 Ala. 523, is cited and relied on by the appellant’s counsel. It is there held, that there was no law in force authorizing such decree between December 8, 1873, when section 3470 of the Devised Code of 1867 was repealed, and December 9, 1877, when the Code of 1876 became operative, and the same section was again revived.—Code, 1876, § 3896. This case was in effect overruled in Luddington v. Forrest, 68 Ala. 1, which sustained a similar decree under the power conferred by Rule 77 of Chancery Practice, found in the Rev. Code of 1867, p. 834, and carried into the Code of 1876, as Bule 80, p. 172. It is provided expressly by this rule that “ when a cause is submitted during term time for a decree or order, such decree shall be valid if rendered during any vacation.” There is no force, therefore, in the objection that the decree was rendered in vacation, as this was authorized by the above rule, which was in existence at the date of its rendition.

The notes given for the purchase-money, and purporting to be signed by the defendants, were prima facie evidence of the existence of the debt, and were properly admitted in evidence without proof of their execution. They were the foundation of the suit, and their execution was not denied by the defendants under oath. The sections of the Code (§§ 3035-6) bearing on this subject manifestly apply as well to courts of equity as to courts of law, the rules of evidence generally in each court being the same, except so far as modified by statute. Holman v. Bank of Norfolk, 12 Ala. 369, 413-4; Bonner v. Young, 68 Ala. 35.

It is urged in this case further, that there is a fatal variance between the allegations and the proof made by the defendants, and that although the evidence may have authorized the dismissal of the bill, the answers of the defendants Strahan and Monk were defective in failing to make the proper averments, showing that they were bona fide purchasers of the land in controversy for value and without notice.

The rule is settled in this State that, in such cases, it is required of a defendant, who is a sub-purchaser, to aver in his plea or answer clearly, distinctly and without equivocation, and with proper circumstantiality of detail, the following facts: 1st. That he is a purchaser from one in actual or constructive possession, who was seized or claimed to be seized of the legal title, at the same time briefly setting out substantially the contents of the deed of purchase, with date, consideration and parties; 2nd, that he purchased in good faith; 3rd, that he parted with value by paying money or other valuable thing, assuming a liability, or incurring an injury, stating the nature of the consideration fully; 4th, that he had no notice of complainant’s equity, and knew no fact calculated to put Mm on inquiry, either at the time of the purchase, or at or before the time he parted with the consideration'.—Craft v. Russell, 67 Ala. 9; 1 Brick. Dig. p. 718, § 1134; Story’s Eq. PleacL § 805.

The answer of the defendant Monk fell very far short of these requirements, and that of McCoy was defective in failing to describe his deed with sufficient particularity, averring only the month and year of its execution without more.

The principle is settled that the allegata and probata in pleading must always correspond. Neither allegations without proof, nor proof without allegations will avail to entitle a complainant to relief, or a defendant to the benefit of his defense, unless the defect is remedied by amendment.—1 Dan. Ch. Pr. 361 (note 1); Alexander v. Taylor, 56 Ala. 60.

Eor the defects, as above pointed out, in the pleas or answers, as we may choose to consider them, of the appellees, Monk and McCoy, the decree of the chancellor must be reversed and the cause remanded for further proceedings. There are other-questions argued in the briefs of the counsel not necessary to-be considered, as they are not properly raised by the assignments of error.

Reversed and remanded.