#### OSCAR WILLIS *against*DANIEL PETERSON *and another.*

Proofs taken in a cause, irrelevant to the *issues made by the*pleadings, will not be considered by the Court.

Cause removed from the Court of Equity of Rutherford county.

The plaintiff alleged in his bill, that, in 1849, he made a contract with one Elijah Craige, for the purchase of a tract of land, on which the said Craige lived, together with all his *339stock of cattle, hogs and sheep ; his corn, fodder, rye and wheat, and all his farming tools, &c.; that a difficulty having arisen between himself and Craige as to the price, he procured the defendant Peterson to go and close the contract, under an agreement, that they (the plaintiff and Peterson) should be joint owners of the property, and that they should carry on the farming business jointly, each paying one half of the purchase money; that this contract was reduced to writing, under seal, which is set out with the pleadings; that the defendant Peterson did conclude the bargain with Craige, "and gave one hundred dollars in cash, and their joint notes for $100 more, payable in instalments, on a credit of one, two, three and four years ; that the defendant Craige, not having obtained a deed from the legal owners of the land, Bronson and Hoyt, but only a bond to make title, which was assigned by the said Craige to Peterson, only, paid one half of the hundred dollars, and Peterson the other half, and that they, in the same proportions, paid off the first of the bonds given ; that they carried on the farming operation for about a year, when the plaintiff left the place in the care of the defendant Peterson; that the said Peterson having possessed himself of a large portion of their joint effects, without the knowledge or consent of the plaintiff, re-assigned the said title-bond to Craige, and surrendered to him the possession of the land. The prayer of the bill is for an account of the joint property and effects, which lias come into the hands of the defendant Peterson, and a payment of the sum to which the defendant is entitled; and that it be declared that one half of the said land, now held by Craige, is the property of the plaintiff, and that the same be sold for a partition and settlement between them; also for general relief.

The defendants both answered. The defendant Craige stated, in his answer, that he was in treaty for the laud in question, with the plaintiff, but that a serious misunderstanding having taken place between them, he resolved not to let him have the land, and not to have any thing to do with him; that afterwards he did sell to Peterson, and did assign the *340title-bond of Bronson and Hoyt to him, and having received one hundred dollars down, he took Peterson’s notes, with the plaintiff and another as sureties on the credits above-stated; that one of these bonds was afterwards paid off, but that before the others became due, he became doubtful of tire solvency of the security he had for his land, and employed an agent to get the debt on a safer footing; that the best the agent could do was to take back the land for the remainder of the debt, which he did by a re-assignment of the title-bond above-mentioned; but that he was himself, as was his agent, ignorant that the plaintiff had any interest or concern in the-land.

The answer of Peterson substantially admits the allegation in the plaintiff’s bill; only he says, that the plaintiff had declared publicly that he had abandoned the purchase, and would have nothing more to do with the matter.

There was replication to the answers, and proofs taken. The depositions taken by Craige tend to show that the re-assignment of the land, by Peterson, was with the consent of the plaintiff.

The cause was set down for hearing on the bill, answers, exhibit and proofs, and sent to this Court.

*N. W.*Woodfin, for plaintiff.

*Gaither*and *Guión,*for defendants.

PeaksoN, J.

The equity of the plaintiff to an account, in respect to the defendant Peterson, is not contested. It is clear that the deed executed, by them, vests in the plaintiff a right to one half of the land mentioned in the pleadings. But the defendant Craige avers that he took the assignment of Peterson, and surrendered the bonds in consideration thereof, *Vona*fide, and without notice either on his part, or on the part of his agent, that Willis had any interest in the land; and to make his averment more *emphatic,*he says, that the assignment by him to Peterson was, with the express understanding, that the plaintiff was to have nothing to do with the pro*341per ty, or any control or concern therein. It turns out, however, upon the evidence, that, in despite of this understanding, Peterson executed the deed whereby the plaintiff did acquire an interest in one half of the land as well as the other property, and thereupon the defendant Craige, finding that the effect of this deed was to vest an interest in the plaintiff, (his refusal to have any thing to do with him, and his stipulation to that effect with his co-defendant, to the contrary notwithstanding,) attempts to shift his ground and take the position, that the re-assignment by Peterson to him was done with the consent of the plaintiff.

In regard to this new matter of defense, much evidence is taken on both sides; but we are not at liberty to consider it, because it is irrelevant to *the issues made by the pleadings. “*Proof without an allegation is of no more effect than allegation without proof.” This case furnishes a striking illustration of the propriety of the rule. It is not adopted simply for the purpose of preventing the opposite party from being taken by surprise, but reaches further, and is relied on as a means of deterring parties, whether plaintiffs or defendants, from an attempt at imposition. For if the evidence runs ahead of the allegation, there is reason to consider it false, as every one is presumed to allege his cause of comjffaint, or his defense, as strongly in his own favor as he can, consistently with the truth; and if the evidence proves a matter which the party has not ventured to allege, but more especially if the evidence proves a matter which, as in our case, is inconsistent with the allegation of the party, and shows it to be false, then the effect of the rule is, that he stands convicted by his own showing. It is unnecessary (to consider the other points made on the argument.

Pee CubiaM, Decree accordingly.