
    WILLIAM MILTON & AL. vs. DAVID HOGUE & AL.
    Where a bill is amended, and the amendment filed contains allegation directly contrary to those made in the original bill, the Court can make no decree, because,they must look into all the pleadings and cannot act upon such contradictory statements.
    The proper way in such a ease is strike out so much of the original bill as is contradicted by the allegations in the amended bill.
    Without a contract between the parties, the sale of the whole tract of land and receipt of the price by one tenant in common, does not turn him into a trustee for a co-tenant, as the latter still has the legal title to his own share and can have redress on it at law.
    Cause removed from the Court of Equity of Rutherford County, at the Spring Term, 1846.
    The plaintiffs filed an original bill against David Hogue in September 1841, and therein charged, that Stephen Hogue was seized in fee of a tract of land in Rutherford, containing 100 acres, and devised the same to his wife for life, with remainder over to his children —of whom the plaintiff, Mrs. Milton, was one: That the testator died and his widow entered into the premises, and died in the year 1830 ; and that then the plaintiffs, the defendant David Hogue, and the other children of the testator, entered. The bill states that in 1833 a gold mine of great value was discovered on the land; and that it was then agreed between the plaintiffs and the defendant. David, (who alleged that he owned the shares of the other'remaindermen) that they would not make partition of the land, but that instead thereof the defendant David should sell the whole of it, including the undivided share of the plaintiffs ; and that, in pursuance of that agreement, David Hogue, in a short time thereafter, sold the whole tract to William McGee 'for the price of $8500 paid to him. The bill states, that the plaintiffs are entitled to one sixth part thereof; but that David hath heretofore paid them only $200, and for that took the notes of the plaintiff William ; he agreeing, however, that the same should be taken into account in settling for his wife’s share of the purchase money. The bill further States that David Hogue conveyed the land to McGee in his own name alone, as if he claimed the whole and were the sole owner; but that the same was done by the assent of the plaintiffs and that they were ready to convey to David Hogue or to McGee, a good title to their share, upon the receipt of their share of the purchase money. The prayer is, that David Hogue come to an account with the plaintiffs for their share of the purchase money apd the interest thereon, and be decreed, after deducting the principal and interest of the notes for $200, to pay the plaintiffs w'hat may be found due to them.
    David Hogue answered, that Stephen Hogue did not make a will, but died intestate, seized of the tract of land mentioned in the bill and other land, and leaving a widow and pine children, of whom the defendant and the plaintiff Zilphia were two ; and that the tract containing 100 acres was allotted to the widow as dower and she occupied it until her death in 1S30.
    The ansvyer denies that it was ever agreed between the plaintiffs and the defendant, that he should sell the Jand or any part of it for them or on their account, or divide the proceeds of the- sale with them in any manner. On the contrary the defendant says that in 1831 (before the discovery of gold) the plaintiff sold to him the share of Zilphia in this and another tract of land, at the price of #500, and by a deed bearing date April 29th, 1831, conveyed the same to him. The deed is exhibited with the answer, and purports to be a bargain and sale made between the plaintiff William Melton and David Hogue, and, for the consideration of #500, to convey “ his undivided share” of the two tracts of land in fee. It is, however, signed and sealed by the plaintiff Zilphia also ; but she has never acknowledged it on privy examination. The defendant admits, that, in the latter part of 1831, he discovered gold on the land and sold it to McGee for #8500 ; but he says he sold it as his own property and not as agent for the plaintiffs, and conveyed it, with warranty, in his own name. He denies any payment to the plaintiffs or either of them of any part of the purchase money, and says that the note he took from the plaintiff William •was for the sum of #200, lent to him in 1840.
    Upon the foregoing answer being put in, the plaintiffs obtained leave to amend their bill. They then filed an amended bill as it is called, against David Hogue, William McGee and John J. Price, in which they state, that Stephen Hogue did not devise the land in question, but that he died intestate, leaving “ seven or eight children.” to whom the land descended, and of whom one was named Delpha and that she died intestate and without issue: That partition was made of all the other land that descended, except the tract containing 100 acres, which was allotted to the widow for dower and was never divided. This bill then states, that the defendant David, having in 1831 or 1832. discovered a gold mine on tfce land, and having previously, as he alleged, purchased the shares of some of the other children, sold the 100 acre tract to the defendant McGee, for the sum of #8500, paid down ; and that McGee then entered and opened gold mines, and, by exhausting them, obtained #20,000 clear profit from them, and has destroyed the value of the land. This bill farther alleges, that the plaintiffs never contracted for the sale of their share of the land, nor authorized a sale thereof; but that, after the sale had been made, they thought it a good one, and were willing to abide by it, and informed David Hogue that they would accede to the sale and confirm the title, if he would pay them their share of the purchase money, and he promised the plaintiffs that he would ; but that he never paid any part of it until 1839 or 1840, and then he only paid the sum of $200, and took notes therefor as mentioned in the original bill.
    This bill then slates that in lS3I,the plaintiffs contracted with David Hogue to sell him the share of the feme plaintiff in that part of the land, which descended from their father, which belonged to her as one of the heirs of their deceased sister Delpha, at the price of $15, 'which he paid iJmSxb ; and that afterwards he presented to them for .execution a deed therefor, as he represented and they, upon the faith of his representation and in the belief that it included the share so agreed to be sold and no more, executed without reading it; and they aver that the same was the only deed at any time made by them or either of them to David Hogue, and that the deed exhibited by the defendant with his former answer, is the one so executed by them. The bill charges that the deed was obtained from the plaintiffs under a mistake as to the contents of it, which was caused by the fraudulent contrivance and false representations of David Hogue, as before mentioned, and also in setting out therein as the consideration the sum of $500, whereas he only paid them $15 or thereabouts, and the plaintiffs never at any time intended or treated for a sale of their share in the gold mine tract.
    The bill further charges that the land is now occupied by John I.-Price, claiming under McGee. And the prayer is, as before, for a decree against David Hogue for a share of the purchase money, received from McGee, upon the plaintiff’s executing proper assurances for the land, which they offer to do ; or that the deed to David Hogue be declared to have been obtained by fraud and cancelled; or that the defendants Hogue, McGee, and Price, re-convey to the plaintiffs a share of the land, and account with them for the profits of the same.
    David Hogue put in another answer, in which he denies positively that he ever promised to pay or account with the plaintiffs or either of them for any part of the purchase money received for the land, or had any treaty with them on the subject. lie avers, that it is not true, that he contracted with the plaintiffs for a share of their deceased sister Delpha’s land; but that he contracted with them for all the interest of the plaintiff Zilphia and of the plaintiff William, as her husband, in the lands which descended from their father and are described in the deed dated April 29th. 1831, and that the deed was rightly drawn according to the contract, both in respect of the land sold and the price; for he states, that he,, the defendant, had made advances for the support of the family to a greater amount than $500, and was induced to take the land at that price, though more than its value, because it was all that he could get. The answer further states, as evidence that no fraud was practised on the plaintiffs, that the plaintiffs knew of the sale to McGee in 1S32, and that the priee wras then paid, and that McGee was making large profits, and that the parties have lived near each other ever since, and the plaintiffs have been in needy circumstances, and yet that no demand was made or complaint in the premises, until the filing of the bill in 1841.
    McGee put in no answer, having left the State; and the answer of Price states nothing of importance.
    The material evidence is that of the person, who wrote and attested the deed. He was examined in September 1844, and says, that he understood that the deed was made for the undivided portion of Zilphia in the lands,. which fell into possession upon the death of her father, and that he did not think the gold mine tract was included* He did not, however, hear either of the parties say so, but he understood it from another person, who was present when he wr'oJ e the deed, and who married one of the daughters of Stephen Hogue and produced the deeds, from which the boundaries in this deed were taken. The witness is unable to remember, whether the parties read the deed or whether it-was read to them, or not, before it was executed; but he thinks he never wrote and witnessed a deed unless he knew the parties were acquainted with the contents. He states that the parties were all present when he wrote the deed, and that he perceived nothing unfair in the conduct of David Hogue ; and that he was at the time in possession of the gold mine tract.
    Several witnesses prove that the plaintiffs have always been in straitened circumstances and lived in the same neighborhood with the defendant, David.- Other witnesses prove, that, pending this suit, David Hogue said, that his sister, Mrs. Milton, had a claim on him, and that he loved her and would pay her #500, and others say, that he said he had offered to give William Milton #750 to compromise the controversy.
    
      Bynum and Guión, for the plaintiffs.
    
      Alexander and J. H. Bryan, for the defendants.
   Ruffin, C. J.

The plaintiffs have entirely failed to establish those parts of their case, which depend on an agreement of David Hogue to sell their share of the land for them with his own, or an agreement after the sale, that they should confirm it by a conveyance of their share, and thereupon receive a due proportion of the purchase money. The answer directly denies any such agreements, and the plaintiffs have not given any evidence of either. If there had been evidence upon either of those heads, the Court would have been at much loss, upon these pleadings, how to give the plaintiffs the benefit of it. The bill, as at first framed, states a title in the plaintiffs under a devise from the former owner, Stephen Hogue, and then an authority from them by parol to David Hogue, to sell their share, and an agreement on his part to do so on their behalf. Afterwards, upon leave to amend their bill, the plaintiffs, without striking out those allegations, allege as new matter, that Stephen Hogue did not devise the land, but that it descended from him to them, and that they did not authorize David Hogue to sell their share, but that he sold it without their consent or knowledge, though they were willing, after the sale was made, to abide by it, because the price was a good one, provided they got their share of the price. It seems not to have been considered, that the bill was thus rendered contradictory in its state of events, or not remembered that the party is bound by every part of his pleadings, and that the Court can no more decree for him against the allegations in one part of them than those in another. In such a case an amendment must be made by striking out the portions in which a mistake has been made, and then adding the allegations according to the truth, as the party means to make it appear. Instead of the pleadings being amended by such means as those here used, they are perplexed and rendered absurd by containing contradictory allegations from the same party. It is true there is no harm done here, because the defendant agrees, that he did not act upon an authority from the plaintiffs j and they have offered no evidence that they came to an agreement, after the sale, that the plaintiffs should have a part of the price got for the land.

The case therefore turns entirely upon the part of the bill, which seeks to set aside the deed to David Hogue, upon the ground that it was obtained from the plaintiffs by fraud or surprise, being for different or more land than that contracted for. The first observation upon this point is, that the interests of Mrs. Milton are not all involved in it; for the instrument has no operation as to her, as upon its face it is an indenture between her husband and brother alone, and, even if that were otherwise, it would still be void as to her, for waiit of execution in the manner necessary to give efficacy to the deed of a married woman. In due time, therefore, she will have her remedy at law upon her legal title by ejectment and partition ; and she has no ground /or relief here. For, without a contract between the parties, the sale of the whole tract of land and receipt of the pi'ice by one tenant iix common, does not turn him into a trustee for a eo-tenaxxt; as the latter still has the legal title to his own share and can have redress oxx it at law. It is not like a sale by one, of the personal property of another, in which case the owner may waive the tort and ti’eat it as a sale made for him, and recover the price as money had and received to his use ; because the property passes by parol. Bxxt it is otherwise in x-espect to land ; for that can pass only by deed, and the purchaser may refuse to accept it

Then, in regard to the deed, as the deed of the husband alone, the question is, whether a sufficient ground is laid for holding it to have been obtained by fraud or surprise.

. There is no doubt, that there was a mistake in it in one respect; which was iix drawing it as the deed of the husband alone “ for his xxndivided shax’e” of the two tracts of land described in it. For it was the intention that the husband and wife should unite in conveying both his right as tenaxxt by the curtesy, and also her right to the inheritance in some land. But that mistake is one, which is not to the prejudice of the plaintiff and of which he does not complain. The ground of surprise on him he alleges in the bill to be, that he and his wife agreed to sell to David Hogue other land, namely, the share of the wife in the lands that had been allotted to her deceased sister Delpha, as her part of her father’s estate. That lot did not, according to the bill, include any part of the gold mine tract; for the bill alleges, first, that partition had not been made of that tract, and consequently no part of it had been assigned in severalty to Delpha ; and, secondly, that partition had been made of all the lands descended, except the 100 acres, which is the subject of this controversy, and consequently Belpha’s share of the other lands was held by her in severalty. The subject of the sale to David Hogue was, therefore, according to the bill, Mrs. Milton’s undivided share o.f the land, that had beers allotted in severalty to. Delpha Hogue in. a division of a part of the land descended from the father — which part included all the land descended, excepting onty the 100 acres held by the widow as- dower, and on which gold was afterwards found. Now, that statement the answer distinctly and positively denies-;, and it states that the defendant purchased all the iutercsts which Milton and his wife fhen had in any of the lands, which had d< - scended from the father, Stephen Hogue, including the 100 acres, whether the interest was derived hv be;' directly from the father as one of his heirs, or through Deipha as one of her heirs. Between the parties thus at issue, the Court is obliged to decide on the greater credit-’ due to the sworn answer of the defendant, unless it be-overborne by the evidence to the contrary of indifferent witnesses. But there is not such evidence in this case. There is but one witness who says any thing material on the subject, namely, the writer and witness to the deed ; and his testimony is very unsatisfactory. To say nothing of the distant period from the transaction at which be, gave his testimony, it is obvious that his means of information, as to the subject of the contract, wore verv imperfect, and that, in truth, according to both" ihe bill and answers, bis statement of it, even as far as it goes, is quite erroneous. He was not present at the bargain, and did not hear the terms, nor the subject of it described by the parties or either of them ; but learnt all he knows from a third person, who. he says, furnished him with the title papers in order to get the boundaries of the land for which the deed was to be written, and yet told him that no part of one of the tracts, therein conveyed, had been sold. He, however, does say distinctly, that he did not understand the gold mine tract was to be included, but understood from that person, that it was not to be. Let us see, then, what, according to his understanding, was to be conveyed. He does not mention Delpha at all, nor allude to her share. He says, he understood that the deed was to be for “ the undivided portion ' of Zilphia (the plaintiff) in the lands which fell into possession on the death of her father.” He obviously means thereby all the land descended from the father, except the 100 acres which was assigned to the widow as dower, and therefore was not considered as having fallen into possession immediately after the father’s death. Now, undoubtedly, the witness is entirely mistaken in this part of his evidence : for of the land, that fell into possession at the death of the father, there was, at that time, none undivided. The bill itself states, that all the land descended had been divided, except the widow’s dower. .Consequently, theplaintiffZilphiahad then no “undivided portion” in the lands of the father, except in the gold mine tract. All this goes to shew, that the witness had no accurate knowledge on the subject of the contract — • much less that he could give such a statement of it as would repel the credit due to the answer, and the pre- . sumption from the execution of the dee.d. itself, that it correctly sets forth the subject of the sale. ■ That presumption is much fortified by the just inference from the silence of the plaintiffs, under much necessity, for so long a period (upwards of nine years,) with respect to the rights and grievances set forth in this bill. No regard can be paid to the offers of compromise, upon the principle of the law of evidence which excludes them. But, besides, there was a plain motive for the offers of the defendant, independent of an acknowledgement of any of the wrongs to the plaintiffs alleged in the suit: which was to obtain a proper deed for the inheritance belonging to the plaintiff Zilphia, as some day it may be very important to him to have that title. The Court must therefore declare, that the plaintiffs have not established, that the deed in question was obtained by the defendant by fraud or surprise, or that it conveys any land which the parties thereto did not intend' at the time should be conveyed.

Per Curiam.

The bill dismissed with costs.  