Gilmer v. Wallace
Supreme Court of Alabama
Appeal from Lawrence Chancery Court. Heard before Hon. Thomas Cobbs. The bill in this cause was filed by William Gilmer against W. K. Wallace and H. C. Speake, for the purpose of having decreed satisfied a deed of trust executed by the complainant, on 8th April, 1872, and conveying to H. C. Speake, as trustee, certain lands, to secure a debt which the complainant owed to the defendant Wallace ; and to enjoin the trustee from selling the lands under the provisions of the…
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Appeal from Lawrence Chancery Court. Heard before Hon. Thomas Cobbs. The bill in this cause was filed by William Gilmer against W. K. Wallace and H. C. Speake, for the purpose of having decreed satisfied a deed of trust executed by the complainant, on 8th April, 1872, and conveying to H. C. Speake, as trustee, certain lands, to secure a debt which the complainant owed to the defendant Wallace ; and to enjoin the trustee from selling the lands under the provisions of the deed. The ground for relief is payment of the secured debt, the bill averring, first, in general terms, the payment of the…
1Opinion of the Court
33MCKELL, C. J.
The rule prevailing in courts of equity is, that pleading and proof must correspond. “ It is not only necessary that the substance of the case made by each party *222should be proved, but it must be substantially the same case as that which he has stated upon the record; for the court will not allow a party to be taken by surprise by the other side proving a case different from that set up in the pleadings.”—1 Dan. Ch. Pr. 860 ; Floyd v. Ritter, 56 Ala. 356; Alexander v. Taylor, Ib. 60. The averment of the bill is in general terms that the debt secured by the deed of trust has beep…
2Cases cited2 opinions
- Kingsbury v. FlowersSupreme Court of Alabama · 1880
- Floyd v. Ritter's Adm'rSupreme Court of Alabama · 1876
3Cited by23 opinions
- Gilmer v. MorrisSupreme Court of Alabama · 1885
- Dinkins v. LathamSupreme Court of Alabama · 1918
- Southern Railway Co. v. LeeSupreme Court of Alabama · 1910
- American Freehold Land Mortgage Co. v. DykesSupreme Court of Alabama · 1895
- Catts v. PhillipsSupreme Court of Alabama · 1928
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