
    John Jeffrey, Adm’r of Richard Jeffrey vs. James M. Flood, and Mary Ann Flood, his wife.
    
      Equity Pleading and - Practice — Mortgage—Payment— Variance between the Allegata and Probata — Usury—Amendment — Decree—Code, Art. 5, sec. 28, (Code of 1888, Art. 5, see. 36.)
    A party cannot have relief which is contrary to the purpose of his hill and not within its scope. He must stand by the averments contained in his pleadings, and cannot state-one case and recover upon another materially different.
    Certain mortgagors filed a bill against the mortgagee alleging that they had mortgaged a tract of land to secure the payment of $1160 with interest, that they had paid the whole of the mortgage debt, except a small balance which they were ready and willing to pay. but that the mortgagee declined to receive the balance and release the mortgage, claiming that a larger sum was due, and under a • power contained in the mortgage had advertised the land for sale. The bill prayed for an account, and that on payment of the sum found to be due, the mortgagee might be decreed to execute a release; also for an injunction and general relief. On a reference to the auditor he reported that the amount actually loaned was .$1000, that this sum with interest had been paid, and $120.36 in excess of the indebtedness. After exceptions the report of the auditor was confirmed, and a perpetual injunction was decreed. On appeal it was Held :
    1st. That although the evidence showed that the mortgage debt was overpaid, the Court could not affirm the decree, because of the variance between the allegata and probata.
    
    2nd. That the plaintiffs could not avail themselves of the defence of usury although usury was proven, inasmuch as they not only had failed to charge usury, but had recognized as a debt the amount stated in the mortgage and offered to pay what remained due.
    3rd. That the plaintiffs’ instructions to the auditor, wherein they objected to the usurious excess, could not be taken as changing the character, or modifying the averments, of the bill.
    
      4th. That the hill might he amended so as to conform to the proofs, and the plaintiffs would then he entitled to such a decree as was passed hy the Court helow.
    5th. That to enable them to make such amendment, the Court would remand the case under section 28 of Article 5 of the Code, (Code of 1888, Article 5, section 36,) without either reversing or affirming the decree.
    Appeal from the Circuit Court for Howard County, in Equity.
    The case is stated in the opinion of the Court.
    Tlie cause was argued before Alvey, C. J., Yellott, Stone, Miller, Robinson, Bryan, and McSherry, J.
    
      M. Bannoh, for the appellant.
    
      Thomas Hughes, for the appellees.
   Bryan, J.,

delivered the opinion of the Court.

James Flood, and Mary Ann Flood, his wife, filed a bill in equity against Richard Jeffrey. It was alleged that on or about the twenty-fifth day of July, eighteen hundred and seventy, they mortgaged to Jeffrey a certain tract of land to secure the payment of the sum of eleven hundred and sixty dollars with interest, at the rate of six per cent.-per annum; that they had paid the whole of the mortgage debt with interest, except a small balance which still remained due, and which they were ready and willing at any time to pay. The bill further alleged that Jeffrey declined to receive the balance, and to execute a release of the mortgage, pretending that other and larger sums were still due; and that under a power contained in the mortgage, he had advertised the land for sale by public auction. The prayer of the bill was that an account might be taken of the money clue under the mortgage ; that on payment of the sum found to be due, Jeffrey might be decreed to execute a release; that he might be enjoined from foreclosing the mortgage, or from making sale under the power therein contained; and that the complainants might have general relief. The injunction was granted, with liberty to the defendant to move for the dissolution of it on the usual terms.

The answer alleged that nine hundred dollars remained due on the mortgage with interest from the fifteenth day of November, eighteen hundred and seventy-eight, and admitted that the defendant had advertised the land for sale under a power contained in the mortgage. A large amount of testimony was taken, much of which was very contradictory. The Court continued the injunction until further order, and referred the case to the auditor to state an account of the payments made in respect to the mortgage debt. The auditor reported that the amount loaned on the twenty-fifth of July, eighteen hundred and seventy, was one- thousand dollars; and that this sum with interest had been paid, and the further sum of one hundred and twenty dollars and thirty-six cents in excess of the indebtedness. Exceptions to the report were filed by the defendant, but it was ratified and confirmed by the Court; and afterwards a decree was passed making the injunction perpetual.

As we agree with the conclusions from the testimony which the Circuit Court reached, we consider it unnecessary to embody in this opinion a detailed discussion of the questions of fact. Our decision of these questions could never be available as a precedent in any future case, and the interest in them is confined to the parties to this litigation. We shall, therefore, content ourselves with stating the facts which we consider proved; some of them without contradiction, and others by a preponderance of probability of more or less weight. Justice to the witnesses, however, requires that we should say that we do not impeach the veracity of any of them; but that we recognize the fact that with regard to events which happened so many years ago, there may naturally be considerable failures of memory. The mortgage was made to secure the payment of eleven hundred and sixty dollars, hut the amount actually loaned was only one thousand dollars; several payments were made to the mortgagee, and many others were made to John Q. A. Jones, and the aggregate amount of all these payments is more than sufficient to repay with interest the sum actually loaned. We think that Jones was authorized by the mortgagee to receive these payments in his behalf. We cannot, however, affirm this decree. The facts -which we have stated do not sustain the averments of the bill of complaint; but in some instances materially vary from them, and in others directly contradict, them. The complainants state the amount of the loan to he greater than that shown by the evidence; and distinctly aver that a portion of it is still due and unpaid, which they offer to pay. The loan was usurious, and if the amount of the usury be deducted from the sum stated in the mortgage, the payments which have been made will extinguish the debt. The complainants do not make any charge of usury, and do not claim relief on that ground. Onthe contrary, they explicitly recognize as a debt the amount stated in the mortgage, and offer to pay what remains due. In the instructions given to the auditor as to the mode of stating the account, the solicitor of the complainants objected to the usurious excess; but this cannot be taken as changing the character, or modifying the averments of the bill of complaint. A party cannot have relief which is contrary to the purpose of his bill, and not within its scope. He must stand by the averments contained in his pleadings; and cannot state one case and recover upon another, materially different; the allegata and the probata must correspond. The bill of complaint might readily be amended so as to conform to the proofs, and the complainants would then be entitled to such a decree as has been passed by the Court below, In order that such an amendment may be made, we shall remand the cause under the twenty-eighth section of the fifth Article of the Code, without either reversing or affirming the decree.

(Decided 9th January, 1889.)

(Filed 9th January. 1889.)

Remanded ivithout reversing or affirming the decree.

Robinson, J.,

filed the following dissenting opinion, in which Judge Stone concurred:

In my opinion this decree ought to be affirmed and not to be sent back.

In my judgment the mortgage debt had been paid, and paid to Mr. Jones by the authority of the mortgagor.  