#### James Browning *and*Elizabeth *his wife, v.*William N. Pratt *and*Moses S. Pratt.

No, decree can be pronounced for the-plaintiff, upon a bill suggesting fraud'in procuring a cleed- and praying to have it cancelled, and for a re-conveyance, where the answer and proofs do not support the allegations, but establish a case entitling the plaintiff, upon a proper bill, to a redemption.

This bill was filed in Orange, and alleged that the plaintiff *James*was seised in right of his wife, the plaintiff, *EHzabefA,*of two tracts of land containing two hundred and twehty-five acres, worth ■ g>500 *;*that he had obtained a judgment before a justice of the peace, a~ gainst one *James.,*execution upon which issued to the defendant *Moses,*who was a deputy sheriff and was levied upon some horses, which the plaintiff *James,*contended to be the property of the defendant in that execution. That the plaintiff finding they were claimed by one *(Parren,*refused to litigate the question of property in the horses with liim, but that 'the defendants pretend- . ing great friendship for the' plaintiff1 advised him that there was no danger, and prevailed on him to have the horses levied on. That the defendants informed *the**45plaintiff *James,*that before a sale could take place, it was necessary for him to sign a writing ; that being entirely illiterate, and confiding in the friendship of the defendants, the plaintiff, James, executed the writing, without having it read to him — and thereupon, a'sale of the horses took place, when they were bought by the defendant, *William-*— that afterwards, *Warren*recovered of the defendant, Moses, in an action of trespass for seizing the horses, and the plaintiff was informed that his land must be sold to satisfy the judgment — as the paper he had executed was a deed conveying his land, in trust, to secure the defendant, *Moses,*in selling under the execution. That at the sale, the land was cried by the defendant, Moses, and was purchased by the defendant, *William,*for $ 80 — that after the sale, the defendants tendered to the plaintiff, *James,*two. deeds and informed him that the land now belonged to the defendan *William;*hut that if he, the plaintiff, would sign those deeds, he might redeem it by the payment of $ 100 within two months. That being as yet entirely blind to the arts of the defendants, anu informed that the deeds contained a clause for redemption, the plaintiff not only executed those deeds, but procured his wife, the plaintiff, *Elizabeth,*to do so likewise — that within two months, *John Redmond,*the father of the plaintiff *Elizabeth,*tendered the sum of one hundred dollars to the defendant *William,*and demanded a reconveyance in behalf of the plaintiff *Elizabeth,*which was refused. The bill then charged, in strong terms, a fraudulent conspiracy between the defendants, to take advantage of the confidence of the plaintiff *James,*and by false and fraudulent representations, rendered effective by his extreme ignorance, to cheat him out of his land, averring that the defendants had procured from him absolute conveyances, without paying any consideration, and prayed that the deeds might be cancelled, and for a reconveyance.

The defendants, in their answer, admitted the fact of the plaintiff’s having obtained a judgment against *Jesse James,*and of the levy upon the horses claimed by *Warren ;*but they denied having, by any representations, in-*46duccd tiie plaintiff to press a sale of those horses ; on the contrary,. they averred, that the plaintiff had, of his own accord, applied to the defendant *Moses,*to sell, aiK| ^j10 defendant *William,*to buy. > That the defendant, *Moses,*refused to sell under the execution, unless the plaintiff would indemnify Mm, which the plaintiff then verbally agreed todo — that the defendant, *William,*refused expressly to purchase, unless the plaintiff would give him a written indemnity against the claim of *Warren,*which the plaintiff agreed to do, and which was then drawn' and executed. That *Warren*had recovered of the defendant *William,*the value of the horses, and the plaintiff having absconded, an attachment against bis property was sued out, upon the indemnity given the defendant *William*— that before the return day of the writ, the plaintiff applied to the defendant *William,*and entreated him to take it up, stating, that if returned, it would only cause an accumulation of costs, and averring his willingness to have his, the plaintiff’s, property sold, to satisfy the execution in favor -of *Warren*against the defendant *William*— that this offer was accepted, and an agreement to that effect drawn and signed hy the plaintiff — that in pursuance of this agreement, a sale of the property of the plaintiff was advertised by him, at which many people attended — that the plaintiff attended, anil delivered the property to the crier, who was the defendant. *Moses,*and who acted at the request of the plaintiff — that the personal property of the plaintiff was very small, and did not produce a sum sufficient to satisfy the execution *;*and thereupon, a tract of land, containing one hundred and-twenty five acres, ivas offered for sale — but the plaintiff, *Eltoabelh,*refusing to join in the conveyance, the life *estate*of *the*plaintiff. *James,*was sold, and purchased by the defendant *William,*For $20 — that these sales left about $80 of the debt unsatisfied, which was more than the plaintiff» *James’*life estate'in the oilier tract, upon which he lived,' would sell for, and that the defendant, *William,*on the evening of that day, agreed to buy the tract for that sum, if the plaintiffs would join in a deed to hinn That the *47plaintiffs consented, to tliese terms, upon condition oí be- ■ ing’ permitted to redeem within two months, which was agreed to, and thereupon a deed was executed by the plaintiffs to the defendant *William,*for the land — hut that the plaintiff, Elizabeth, had subsequently refused to consent to the same, upon her privy examination. That ,no clause for redemption was inserted in, the deed, not for any fraudulent purpose, but because no expectation had been entertained of selling any title but.that of the plaintiff, James, and the deeds had been prepared before the sale. The defendant William, denied positively, that the agreement for redemption extended to both tracts, and insisted that it was confined to the home plantation, fie admitted a tender of £5.100 by Uedmond, and a demand of a reconveyance of both tracts, and his refusal to comply ; but-averred, that ho then stated to *Redmond,*that he was willing to reconvey the home tract, upon tiie repayment of !§ 80, hut that this proposal was rejected by *Redmond.*

Replication whs taken to tiie answers, and many depositions filed. They all supported the answer, except as to the fact whether the agreement for redemption extended to both tracts, or was confined to the home plantation. Upon that point, the. evidence was contradictory.

The canse was submitted by *Badger,*for the plaintiffs, and JV*as/i, for the defendants.

Rums, Judge.

The court would gladly in this, as in every case, administer justice according to the true rights of the parties, as collected from any part of the pleadings or proofs. There seems to have been an,agreement for the redemption of the home tract; and if the frame of the bill put it in our power, that would be decreed. But the ease is there stated in a manner so foreign from the truth, and with a view to relief so entirely different, as not to put in issue the question of redemption, and render any of the examination of the witnesses to that point relevant or competent; or even to authorize a deci’ee upon a. particular admission of the defendants.

*48The wife is an aside a deed for lently'p’rocured |ier lws‘

His Honor here repeated the substance of the bill as above stated, and proceeded as follows : The first observation which the case, thus stated, calls for is, that the wife was improperly made a plaintiff. Her rights were not affected, as she did not execute, the deed of trust, or apy other conveyance, according to the charges of the bill. The deed, if any, was that of the husband, an^ operated upon his own estate only. For which reason the bill of the wife would necessarily be dismissed.

But upon the answer and proofs, it turns out, that not one material allegation of the bill is true. There was no deed of trust, nor a conveyance of any sort, obtained from *Browning*before the sale. There was no pretence of selling under such authority. There was no fraud or deception in obtaining a sale, or in the defendant’s purchase, The answer states, and witnesses on both sides prove, that for a just demand, the defendant *William*was about suing *Browning,*who besought him not to do so, and agreed *to raise the*money by a-sale of his property without suit. That accordingly, he himself advertised the sale, and was present at it; that he delivered the articles for sale, and got the defendant *Moses to*cry them 5 and that, at such public sale, the defendant *William*purchased one of the tracts of land, andón the evening of the same day, by agreement and deed, made and executed in the presence of a crowd of people, purchased from *Browning*and wife the other tract. This obviously answers the whole *bill;*andbeingproved to be true, annuls all the equity alleged.

But the answer, going beyond the matter of the bill, ' admits that at the sale the defendant *William*purchased one of the tracts of land at *$20,*and took a conveyance from Browning, whose wife would not join in the sale and conveyance, which caused it to sell so low. It further states, that $80 yet remained to beraised, and that *Browning’s*life estate in the other (home) tract would not bring it; hut that he, *William,*proposed to give that sum for it, ifthe husband and wife would both convey that tract in fee to him: and it further admits, that this last tract was to he subject to redemption by *Mrs.*Browning., *49if she should repay the same sum within two months, and that under that agreement *Browning*and wife did convey the home tract, tho’ she refused to execute the deed for the other, and hath since refused to bo privily examined to that which she did execute. To this statement there is full proof by many witnesses on each side, in every particular but one : that is the point, whether the agreement for redemption extended to both tracts, or related to the home tract alone. For it seems, that *Mrs. Browning's*father afterwards tendered $100 on her behalf, and claimed a reconveyance; which the defendant refused as to tho first tract, but offered for $80, as to the home tract. But that was not accepted unless both pieces could be *got;*and *thereupon this*suit was brought. Upon the proofs on this disputed point, the preponderance is, in the opinion of the court, with the defendants, "were it proper to consider them. But as they are manifestly out of the pleadings, they cannot bo heard *;*for they are not material to any issue between the parties, and consequently have no sanction for their truth.

Proofs which lire not material to any issue between the parties cannot be read upon the bearing.

The plaintiff Sometimes obtains a decree solely upon the admission in the answer, but the admission must have some reference to the case made by the bill and not be entirely in a-yoidance of it.

Relief never can be ¡ywen which is directly contrary to the prayer of the bill —as if the player is, thata deed *50be cancelled, a decree in affirmance of it will not be made.

*49Will the answer of the defendants authorize a decree to the extent of the admissions made in it ? in some cases it might. For it is not necessary that the bill should precisely allege every matter in accordance with the proofs, or the admissions of the answer. But it is requisite, that its statement should have some semblance of the reality ; and that an admission in the answer, to be acted on, should have reference to, or bearing on the case made in the bill, and not be in entire avoidance of it. Here a simple question of redemption, in which the real controversy is confined to the single point of fact, whether one,or two tracts of land should he redeemed, is altogether disguised, and turned into a case of aggravated fraud made up of falsehood, oppression, breach of confidence, treachery, and undue advantage taken of an illiterate man ; on which is founded a prayer to cancel the deeds, or for an absolute reconveyance. The court cannot give relief contrary to that asked for, and on a case, tho’ appearing in the answer, standing directly *50opposed to that stated by the plaintiff. When the plaintiff asks us to rescind a contract upon a fraud of this sort, we cannot affirm an essentially different contract, and decree relief on it as affirmed. Upon a case and prayer to cancel deeds, we cannot set them up, upon the ■ground of a fair, specific agreement for redemption, and-decree such redemption. The charge and the admission are nothing alike, and . do not relate to the same transaction. It is not like holding fraudulent deeds to be a security for advances under them. Justice to defendants demands this. much at least from the court.: that they should be enabled from the allegations in the hill to form some intelligible notion of the ground of complaint, and the nature of the redress sought. And a respect for the perspicuity and certainty of judicial proceedings, and professional proficiency likewise prescribe the duty to the/ draughtsman, to put into the hill such statements as will convey to the court, at least an outline of the case, and some idea of the principle oh which the relief is sought.

Costs are not given against a married woman in a suit for matters occurring after the cover-ture, and to which she is an unnecessary party.

To give any relief in such a case as the present, would be allowing a latitude or laxity of statement, incompatible with the rules of equity pleading, with the ease of the court, and a just regard to the rights of the defendants generally. Indeed it might be against the interests of the plaintiffs *themselves;*for upon a proper bill, they may be lot into proof, and he able to prove, that both.. tracts were included in the agreement for redemption.

The bill must therefore be dismissed at the cost of the plaintiff, James Browning„ No costs are given against the wife, because the suit is founded on matter happening altogether during coverture, in which her interest, according to the bill itself, is not in the least concerned. It is not considered her suit *therefore;*and it is supposed, that the defendant’s costs are sufficiently secured by the prosecution bond. At all events, the wife was improperly, and without her consent, made by her husband, or the solicitor, a party, as far as appears to the court; apd therefore costs are not given against her.

Per Curiam. — Biim dismissed.