Rose v. . Patterson , 220 N.C. 60 ( 1941 )

Civil action to enforce liability against defendant for debt of A. S. Patterson, deceased, to the value of property received by defendant from decedent.

From judgment of nonsuit entered at the close of all the evidence, plaintiff appeals, assigning error. In this action the plaintiff seeks to hold the defendant personally liable for his claim against the estate of A. S. Patterson, deceased, to the extent of property received by the defendant from the decedent. C. S., 59, et seq. The character of the action was considered on two former appeals, reported in 218 N.C. 212, 10 S.E.2d 678, and sub. nom.,Thomasson v. Patterson, 213 N.C. 138, 195 S.E. 389.

The evidence on the trial, if inculpatory at all, points only to adevastavit on the part of the defendant as executrix of the estate of A. S. Patterson, deceased, and not to any personal enrichment at the expense of creditors. The nonsuit is justified on the ground of a variance between the allegation and the proof. S. v. Jackson, 218 N.C. 373,11 S.E.2d 149; S. v. Franklin, 204 N.C. 157, 167 S.E. 569; S. v. Harbert,185 N.C. 760, 118 S.E. 6. "The parties must allege their cause of action or defense, and prove the same on the trial, and a variance arises when the evidence offered does not correspond with the allegations of the pleading." McIntosh, Practice and Procedure, 517.

The refusal to remove the case to Swain County for trial was upheld on the allegations of the complaint. 218 N.C. 212. The case is to be tried on the pleadings. Green, v. Biggs, 167 N.C. 417, 83 S.E. 553; S. v.George, 188 N.C. 611, 125 S.E. 189, and cases there cited.

Affirmed.