FREEMAN vs. SWAN et al., 22 Ala. 106

LIGON, J. It is a well settled rule, both at law and in equity, that the allegations and proof must correspond in order to entitle a plaintiff to recover; and in a court of chancery the positive responsive denials of the answer must prevail, unless they are overrode by the direct testimony of two witnesses; or of one witness, with strong corroborating circumstances. In the case under consideration, the only allegations in the bill which give the complainant the slightest claim to relief in a court of equity, are those which relate to the contract between the complainant and the defendants, Wilder and Swan.

No equity can arise to him, or any other person, out of the transaction between Moore and Nathaniel Wilder, sr., in respect to the lands. The wife of Wilder, as is shown by the bill, died before her father, Daniel McDuff, from whom these lands descended directly to her children; so that the marital rights of her husband could never attach to them, and the only relation by which he could intermeddle with the real estate thus descended to his infant children, would be as their natural guardian, or as their general guardian duly appointed by the proper court.

In either of these characters he would not be allowed to make a private sale of their lands; and the purchaser at such sale, if he presumed to make one, would ■ take-no title, either at law or in equity, against tbe wards. Tbe only way in wbicb tbeir title can be divested is, by sale under tbe rules prescribed by our statutes, (Clay’s Dig. 288, § 6-7 and 225, § 23,) and there is no pretence that there was any attempt to comply with them in the sale made by Nathaniel Wilder, sr., to Wm. H. Moore. As he had no title, he could convey none to the present complainant.

Before the contract of sale by Wilder and Swan to the complainant, the parties were tenants in common of the land mentioned, each party having an interest of one third; the two former claiming by inheritance from Daniel McDuff, deceased, and the latter under the conveyance of Nathaniel Wilder, jr., to Wm. H. Moore, who was complainant’s vendor. Freeman’s equity, if he has any, must, as we have said, arise out of his contract with the defendants Wilder and Swan. On this subject we find substantially these allegations in the bill: “ That Wilder and Swan told him, that William H.

Moore had never paid Nathaniel Wilder, sr., for the land; that on this representation he executed and delivered to them his four notes for $125 each, upon the express understanding and agreement, that if Moore should say that he had paid for the land, the notes should be returned to the complainant; that they were to make him a good title to the lands at all events, but his notes were not to be paid, except on condition, that Moore should say, that he had not paid Nathaniel Wilder, sr., for the land.” To these allegations the answer of Wm. S.

Wilder interposes a direct and positive denial; and that of Swan and wife denies it upon the authority of information from Wm. S. Wilder, who was authorized by them to make the sale, but who, they assert, had no authority from them to attach any such condition to the payment of the purchase money. The allegation in the bill, in the terms in which it is made, is unsustained by the proof of a single witness.

Greron, who does not pretend that he heard the agreement between the parties, and who does not inform us whether the declaration which he proves was made before or after the notes and title bond were executed, or that it was known to complainant before he made the purchase, testifies, that about the time the complainant purchased the land, he heard Wilder and Swan say that “ if Moore had paid Nathaniel Wilder, sr., $500 for the land, or if they could be satisfied that he had done so, they would claim nothing of the defendant.” Elannagan, who is the only subscribing witness to the notes, and who, with John McDuff, -witnessed also the title bond, says that Wilder and Swan said, that “ if Moore had ever paid Nathaniel Wilder, sr., for the land, the notes were to be null and void.” This witness also testifies to another fact, which does not so well harmonize with the one just recited, and which tends strongly to contradict the version of the agreement given in the bill; and that is, that complainant told the defendants, Wilder and Swan, after the notes were made, “ that they would have to sue him on them, should ,Wm.

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Moore refuse to pay them.” What could have called forth such an expression from him, if he was to be discharged from the payment of the sum secured by the notes, and they were to become “null and void if Moore would say he had paid the elder Wilder for the land ?” Opposed to this, we have the positive answer of Wilder, founded on his own knowledge; that of Swan and wife, based on information and belief; the testimony of John McDuff, a subscribing witness to the bond for titles, and the notes and title bond made between the parties at the time of the transaction, and which are utterly inconsistent with the allegations in the bill, and the evidence of Elannagan and Geron.

These must prevail. ■ We have not considered the question as to the admissibility of the parol proof in this case, which received the attention of the Chancellor; because, we are not advised by the record that any objection was made to it by the defendants in the court below; and we will decide no question, on error, which is not there made by the parties and acted on by the court, and that action assigned and insisted upon in this court as error; unless it be a want of jurisdiction, apparent on the face of the proceedings in the court below. Gordon v. McLeod, 20 Ala. 242; Wyatt v. Judge et al., 7 Por. 37.

Our conclusion is, that the deci’ee of the Chancellor is correct, and must be affirmed.