(after stating the case). The only exception presented is to the instruction given to the jury, that there was no evidence of the execution of any deed from Jacob Jarrett to Margaret Seagle for this land, and that their response to the fourth issue should be “No.”
There certainly was none offered to sustain it in its present form, and while the title did reach her in the circuitous manner stated, it did not, as alleged in the complaint and as embodied in the issue, and no amendment was asked to adapt the issue to the facts in proof, and thus avoid a variance, as perhaps would have been allowed under section 269 of The Code. There was then a failure to establish a material fact alleged and necessary to the plaintiff’s relief in the premises. “There must be,” in the words of the late Chief Justice, “ allegata et probata, and under the new system, as under the old, the Court cannot take notice of any proof unless there be a corresponding allegation.”
Proof without allegation is as ineffective as allegation without proof. McKee v. Lineberger, 69 N. C., 217.
The same eminent Judge, speaking in reference to a want of correspondence between the allegations and the evidence, says, that under sections 128, 129, 132 of C. C. P., a plaintiff may sue for a horse5 and recover a cow (which Blackstone treats as an absurdity); but in order to that, when the variance appears, the plaintiff must obtain leave to amend by striking out “horse” and inserting “cow,” or else the party must find the facts specially, or the case must be submitted to the jury on issues, so that the pleadings may be amended *557 and be made to conform to the facts proved on such terms as the Judge may deem proper, “unless the amendment affects the merits and substantially changes the claim or defence.” Shelton v. David, Ibid., 328. To the same effect is McLaurin v. Conly, 90 N. C., 50.
The variance was material. The complaint (and the issue conforms to it) avers that Seagle, instead of causing the deed to be made to himself, according to the contract, caused it “to be made by said Jarrett directly to said Margaret Seagle,” and this “for the purpose of hindering the said Seagle’s creditors and defrauding them of their debts.”
The proof is that the heirs of Jarrett, after his death, made the deed to Stallings, pursuant to a title bond the deceased had given to him before that given to Seagle, and that upon the terms stated in the case on appeal. An amendment thus became necessary, aud as the appellant would not ask it, but preferred to stand upon his complaint, judgment was rightfully given against him.
We have not considered, because not necessary in determining the appeal, the other point made by counsel of ap-pellee, that the debt was extinguished by the sale and purchase by the plaintiff under his execution, and the taking the sheriff’s deed therefor, as alleged in the complaint, the statutory remedy, if applicable to the case, having the effect of re-instating the claim in another form to the purchasing plaintiff.
There is no error, and the judgment is affirmed.
Affirmed.