Rakestraw v. Brogdon , 56 Ga. 549 ( 1876 )

Bleckley, Judge.

1. Compare the evidence with the charges in the bill, and it will appear at a glance, that the verdict is contrary to evidence. The evidence shows that the case made by the bill is not true; the verdict finds, in effect, that it is true. If conflict can exist it is here. Should it be said that the verdict is not to be applied to the averments of the bill, but to some case outside of the bill, the answer is, that proof of a case substantially different from the one alleged, whether the case proved be good or bad, will not warrant a recovery. Relief cannot be granted for matters not alleged. The court pronounces its decree secunclum allegata et probata: 6 Georgia Reports, 589; Ayers vs. Daley, 56 Ibid., 119. This rule prevails in all courts. If I sue specially, in case, for stealing a promissory note and collecting money thereon from my debtor, can I recover by proving that, although I had no note and none was stolen or paid, still, I deposited a certain sum of money with the defendant, or gave him an order to collect it from my debtor, and he collected it accordingly ? Is it immaterial whether I found my demand on larceny or on agency ? Is theft only a species of bailment ? The bill which we are considering imputes to a person dead before it was filed, conduct depraved and dishonorable in procuring title to land. It tends to blacken his memory; and if it is not libelous, it lacks only a malicious publication to stamp it with that character: Code, sections 4521, 2974.

2d. There can be no reasonable doubt that the difference between the bill and the evidence is essential. The bill makes a case of fraud which depends in no respect upon the intention of the complainant. The defendants are not put upon notice that his intention is, or can be, material to the trust sought to be established. But if the evidence embodies any trust at all, (which we do not decide, as it is dehors the bill,) the very life of the trust hangs on the complainant’s intention at the time he gave his consent for the testator to obtain a conveyance of the land, and take it in his own name. The object or purpose of that consent is a vital question, yet, neither the consent itself nor its object is alleged. Indeed, so far from being alleged, such a consent is inconsistent with the whole tenor of the bill, and is virtually denied. And still,, the complainant lias proved it, and seeks to rest his recovery upon the implied purpose for which it was given. Until that consent was given, there was no seed of any trust. It was then and thereby that the trust afterwards born with the deed, if any was born, had its conception. The complainant, previously, when paying for the land so much of the purchase money as he advanced, intended to take title to himself. When be changed bis intention and gave an order for making the deed to another person, what was his purpose? Was it a benefit to himself in the land, or was it something else? That question is not raised by the bill at all, and yet, without having it passed upon by the jury and decided, the theory that a resulting or implied trust is established by the evidence, even if otherwise well founded, cannot be upheld. Thus the great battle-field on the evidence lies wholly outside of’ the bill. It would be fruitless now to examine, in detail, the various errors ascribed to the court in charging and in refusing to charge the. jury. Some of them are necessarily ruled by the general view which we have presented. If there shall be a verdict sustaining the bill on full proof of its averments, it may then become necessary to scrutinize further (he instructions by which the jury are guided ; but if some of the main facts iff this record are not disproved and others established in their place, the defendants below are in no present danger.

.Judgment reversed.