
    WILLIAM R. CATON vs. STEPHEN WILLIS & AL.
    When a bill is filed, to set aside an instrument on the ground that it was executed by mistake or accident, the nature of the mistake or accident must be set out with certainty in the bill.
    Exhibits do not make a part of a bill, but are a part of the proof, and cannot aid defective statements in the bill, any more than any other part of the proof.
    Cause removed from the Court of Equity of Craven County, at the Spring Term 1848.
    
      The bill charges, that one Adam Gaskins died intestate, seised and possessed of a parcel of land, lying on, Swift Creek in the County of Craven ; That this land descended to Guilford Gaskins, Stephen Gaskins,-- >-, who were the heirs at law of the said Adam* That partition was duly made, and a share designated as lot No. 5, was assigned to Guilford Gaskins. The record of the proceeding for partition is referred to as an exhibit.
    The bill further charges, that Guilford Gaskins contracted to sell to Stephen Gaskins the said lot, No. 5, for the sum of $195, “and accordingly executed a deed dated 29th of September 1835, whereby the said Guilford honestly intended to convey in fee simple to the said Stephen the said lot No. 5, but by mistake or accident, the land was so described therein as not to embrace or convey the same That the said Stephen, believing the deed did convey the said lot, as was intended, entered into possession and made valuable improvements and remained in possession until the year 1842, “when he sold the same for full value to tbe plaintiff, who had full confidence in the validity of his title to the said lot,” and thereupon the plaintiff entered upon the land, and has expended much labor thereon : that Guilford and Stephen Gaskins were ignorant and illiterate men, not acquainted with the form of legal conveyances.
    The bill further charges, that the defendant Stephen Willis, well knowing that Guilford Gaskins intended by the deed to convey lot No. 5, to Stephen, and being, as he was a surveyor, well acquainted with the land, found out that the deed did not embrace lot No. 5. Under pretence of buying some “vacant land,” as it was called, which had also descended to the heirs of Adam Gaskins, he procured Guilford Gaskins to execute to the defendant, Major, a deed, which included a large part of the lot No. 5, and that the said Major Willis, after getting the deed, in 1845 commenced an action of ejectment against the plaintiff. The prayer is, that the defendants may be perpetually enjoined from proceeding in the action, and from commencing any other action, whereby to turn the plaintiff out of possession, and for general relief.
    The defendants deny all the material allegations of the bill. They'allege, that Guilford, by his deed to Stephen Gaskins, conveyed or intended to convey lot No. 4, which he had purchased of one Luton and wife, to whom it had been allotted'in the partition ; and that he did not intend to convey lot No. 5, by his said deed. They further allege, that Guilford Gaskins, by his deed to Major Willis, conveyed only a part of lot No. 5, and not the whole of the lot; and that Stephen Willis, in making the purchase, acted as the agent of Major Willis, and had no interest in the land.
    
      J. H. Bryan, for the plaintiff.
    
      Mordecai, for the defendants.
   Pearson, J.

Many depositions were taken on both sides, but it is not necessary to advert to the proof, because the allegations of the bill are so general and uncertain, that it is impossible to declare the facts necessary to entitle the plaintiff to a decree.

In all bills, to entitle the plaintiff to a decree, there must be proper allegations. Proof without allegations will no more answer the purpose, than allegations without proof. There must be “allegata etprobata” It is true, the same degree of certainty is not required in pleadings in Equity, as is required in pleadings at law, hut there must be some certainty, and the facts material to make out the plaintiff’s equity must be alleged in a manner to enable the defendant to take issue, and' to enable the Court to see what it is, that the plaintiff insists upon. If a bill should charge, "that the defendant practised a fraud upon tlie plaintiff,” without stating in what the fraud consisted, or in what way it was effected, every one would admit, that the allegation was too general and uncertain.

The allegation of the mistake or accident, by which it happened, in this case, that the deed made by Guilford to Stephen Gaskins did not include the land, which the parties intended, is as general and uncertain, as in the case supposed above. The allegation is, that in the partition of land of Adam Gaskins, lot No. 5 was allotted to Guilford Gaskins ; That he contracted to sell lot No, 5 to Stephen Gaskins ; but that “by mistake or accident the land was so described therein, as not to embrace or convey the same.” This is wholly uncertain, and yet it js the “gist”of the plaintiff’s case.

The bill should have set out the metes and boundaries of lot No’ 5, or identified the land in some other way, the metes and boundaries of the deed and the manner in which the alleged mistake or accident occurred, as that the draughtsman copied the metes and boundaries of lot No. 4 by mistake, instead of the metes and boundaries of lot No. 5, if such was the fact; or that in the boundaries, a, certain line was by mistake, written “South” so many poles, instead of “North” so many poles, if such was the fact. In short, it should have stated the manner in which the thing happened, and given some idea of what it is, about which the plaintiff complains.

The bill in another allegation states, that, afier his purchase, Stephen Gaskins took possession of the said lot, and continued in possession until 1842, “when he sold the same, for the full value, to the plaintiff, who had full confidence in the validity of his title to the same.” It do -s not appear, whether the deed made by Stephen Gaskins to the plaintiff, if he made one, correctly desciibes lot. No. 5, or follows the description in the deed made by Guilford ; in which latter case it would be material to allege, that the plaintiff intended to buy lot No. £>,, and how it happened, that there was the mistake or accident in this deed, if such was the fact. Copies of the report of the commissioners, who made the partition, of the deed of Guilford Gaskins to Stephen Gaskins, and of the deed of Stephen Gaskins to the plaintiff are filed as exhibits.

Exhibits do not make a part of the bill, but are a part of the proof, and cannot aid defective statements in the bill, any more than any other part of the proof.

But if we go out of the bill, and look into the exhibits, we can see no light. Lot No. 5, has certain metes and bounds — the deed of Guilford Gaskins has . metes and bounds entirely different, and makes no reference to lot No. 5, nor do its metes and bounds correspond with those of any of the other lots, or with any one corner or line of any of the lots. The deed of Stephen Gaskins to the plaintiff has the same metes and bounds, as the deed of Guilford, and makes no. mention of lot No. 5.

We think the bill is defective for uncertainty, and it must be dismissed with cost. ,

Per Curiam.

Bill dismissed with costs.  