Bowen v. Darden ( 1951 )

64 S.E.2d 285 (1951) 233 N.C. 443

BOWEN
v.
DARDEN et ux.

No. 307.

Supreme Court of North Carolina.

April 11, 1951.

Dink James, Kenneth G. Hite, and Albion Dunn, all of Greenville, for plaintiff appellant.

Blount & Taft, E. H. Taft, Jr., and W. H. Watson, all of Greenville, for defendant appellees.

BARNHILL, Justice.

The complaint is an extended and somewhat laborious recital of numerous events, facts, and circumstances. Occurrences both before and after the execution of the deed under attack are detailed at some length. This prolixity renders it difficult, if not impossible, for us to ferret out with any degree of certainty the exact nature of the cause of action plaintiff seeks to allege. On the argument here her counsel was unable to give us any assistance in this respect. Jackson v. Hodges, Com'r of Insurance, 232 N.C. 694, 62 S.E.2d 326.

If she seeks to reform the deed, then the grantors are necessary parties. If she rests her case upon the alleged breach of an agreement by defendants to live with and care for her during the remainder of her life, she must seek another remedy. Minor v. Minor, 232 N.C. 669, 62 S.E.2d 60. If it is her purpose to have the grantee of the remainder interest declared trustee, ex maleficio, for that the inclusion of that provision was procured by the fraud and undue influence of the defendants, she is met by the fact there is no evidence the grantee in any wise took advantage of any confidential relation or participated in procuring the inclusion of the remainder provision in the deed. Nor is there allegation or proof that there was any collusion between the two defendants such as would charge the feme defendant, grantee, with liability for the acts of the male defendant.

On the other hand, if she seeks to impress a trust upon the remainder interest conveyed to Hildred Darden and have her declared trustee for the use and benefit of plaintiff for the reason the male defendant abused and betrayed his position of trust and confidence by having the deed prepared in its present form, without the knowledge and consent of plaintiff, then there is no sufficient allegation in the complaint to support testimony to that effect. Plaintiff was unduly influenced to agree to insert that provision in the deed as a means of securing the money borrowed from the male defendant. So it is alleged. And this allegation imports knowledge of the contents of the deed at the time it was executed.

There must be allegata and probata and the two must correspond to each other. The plaintiff must make out her case secundum allegata, and the court cannot take notice of any proof unless there is a corresponding allegation. Maddox v. Brown, 232 N.C. 542, 61 S.E.2d 613; Whichard v. Lipe, 221 N.C. 53, 19 S.E.2d 14, 139 A.L.R. 114.

It may be, as counsel for plaintiff so earnestly insists here, the facts alleged entitle plaintiff to some relief. Yet the law requires the plaintiff to choose the cause of action upon which she desires to rely, and she must state that cause of action in her complaint in a clear and concise manner, G.S. § 1-122, so that the defendants will not be left in doubt as to how to answer and what defense to make. Hussey v. Norfolk S. R. Co., 98 N.C. 34, 3 S.E. 923. The pleadings must raise the precise issues which are to be submitted to the jury, Hunt v. Eure, 189 N.C. 482, 127 S.E. 593, so that the court itself may not be left in a quandary as to the cause of action it is trying. King v. Coley, 229 N.C. 258, 49 S.E.2d 648.

The proof offered is not directed to any issue raised by the pleadings, and for this reason there is a variance between allegation and proof. This requires a dismissal. Whichard v. Lipe, supra.

The judgment below is

Affirmed.