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Argument for Appellants.

Such was the state of the record when the cause came on for hearing. After the evidence was read the complainants asked leave to amend the prayer of the bill by inserting therein the following words: “Or, if thought proper, that the court give a decree for the purchase-money due on said lands, and that the plaintiffs be decreed to have a lien on said lands for the payment thereof, and that said lien be foreclosed.” This amendment was allowed, and the defendants excepted. And thereupon the court, having heard the evidence and the argument of counsel, rendered a final decree, and adjudging that W. D. Hardin was indebted to B. P. Boyd, administrator of Ware, in the sum of $17,150 on the purchase-money for the lands and that complainants have a lien thereon for its payment, relating back to the date of the title bond. The deeds from L. B. Hardin, administrator to W. D. Hardin, and from the latter to his wife, were cancelled for fraud, and the land ordered to be sold in satisfaction of the lien; no sale, however, to take place until the heirs of Ware shouid file in court a warranty deed for the lands. The court refused to give a personal decree for the balance of the purchase-money, “the same being barred by the statute of limitations.” Subsequently, the heirs of Ware filed the required deed in court, and the decree was made absolute.

Hardin appealed to this court. After the appeal was per. fected he departed this life, and, by consent, it was revived in the name of Mrs. Hardin, as his administratrix. After the submission of the cause here the heirs-at-law of Hardin appeared, and by consent they were made co-appellants without opening the subinission.

Mr. B. C. Brown, Mr. Thomas M. Peters and Mr. 0. P. Lyles for appellants argued the case on its merits, including several questions not noticed in the opinion of the court. On the effect of the statute of limitations on the claim, they cited Birnie v. Main, 29 Ark. 591; Gantt's Digest, $ 4113; Lupten V. Janney, 13 Pet. 381; Underhill v. Mobile Fire Department Insurance Co., 67 Ala. 45. As to the amendment, they said: The amendment allowed by the chancellor in the prayer of the

Opinion of the Court

origina, bill, after the trial had commenced, was improper. The amendment made a new case, and was repugnant to the prayer of the original bill. The original bill was for a cancellation of the sale, and the amendment was to enforce it. It deprived the defendant Hardin of the opportunity of showing upon the new issue thus presented that the whole purchase-money was fully paid. The question of payment vel non had been presented in the original bill as an evidence of fraud. This he had fully met. The relief in the two cases is not precisely the same, Shields v. Barrow, 17 How. 130; Waldren v. Bodley, 14 Pet. 156; Sneed v. McCool, 12 How. 407; Story Eq. Pl. § 256; Lehman v. Meyer, 67 Ala. 396; Micou v. Ashurst, 55 Ala. 607; 1 Daniel Ch. Pr. 328--385; Rives v. Walthall, 38 Ala. 329.

Mr. U. M. Rose for appellees.

MR. JUSTICE Harlan, after stating the foregoing facts, delivered the opinion of the court :

In reference to amendments of equity pleadings the courts have found it impracticable to lay down a rule that would govern all cases. Their allowance must, at every stage of the cause, rest in the discretion of the court; and that discretion must depend largely on the special circumstances of each case. It may be said, generally, that in passing upon applications to amend, the ends of justice should never be sacrificed to mere form, or by too rigid an adherence to technical rules of practice. Undoubtedly, great caution should be exercised where the application comes after the litigation has continued for some time, or when the granting of it would cause serious inconvenience or expense to the opposite side. And an amendment should rarely, if ever, be permitted where it would materially change the very substance of the case made by the bill, and to which the parties have directed their proofs. The rule is thus stated in Lyon v. Talmadge, 1 Johns. Ch. 184, 188: “If the bill be found defective in its prayer for relief, or in proper parties, or in the omission or statement of fact or circumstance connected with the substance of the case, but not forming the substance itself, the amendment is usually granted. But the substance of the bill must contain ground for relief. There must be equity in

Opinion of the Court.

the case, when fully stated and correctly applied to the proper pårties, sufficient to warrant a decree.” And, in 1 Daniells Ch. Pr. 384, 5th ed., the author, after alluding to the rule in reference to amendments, observes: “The instances, however, in which this will be done are confined to those where it appears, from the case made by.the bill, that the plaintiff is en

, titled to relief, although different from that sought by the specific prayer; when the object of the proposed amendment is to make a new case, it will not be permitted.” Whether the amendment in question changed the substance of the case, or måde a new one, we proceed to inquire.

The original bill in this suit, certainly states facts entitling complainants to some relief. He and his wife were in possession, asserting title, freed from all claim, of whatever kind, upon the part either of the heirs or of tặe estate of Ware.

The complainants evidently supposed that the relief to which they were entitled was a cancellation, upon the ground of fraud, of Hardin's contract of purchase, as well as of the deeds to him and his wife, with an accounting that would embrace, on one side, the rents and profits derived from the lands, and, on the other, the value of the scrip or warrants that he had delivered in part payment of the purchase-money. But if it were doubtful whether the evidence was sufficient to justify a decree setting aside the contract upon the ground of fraud or imposition practised upon the vendor, and if the evidence clearly showed that the purchaser had not fully paid for the lands, according to the terms of his purchase, should the complainants have been driven to a new suit in order to enforce a lien for the unpaid purchase-money? And this, too, after the pa ties had taken their proofs upon the issue, distinctly made by the pleadings, as to the amount of the purchase money really due from Hardin ? Such practice would have done no good to either party, and must have resulted in delay and additional expense to both. A new suit to enforce a lien on the land would have brought before the court the same evidence that was taken in this cause as to the amount Hardin had paid. When leave was asked to amend the prayer for relief, no objection was made by the defendant; but the amendment having been allowed, he excepted,

Opinion of the Court.

but without any suggestion of surprise or any intimation that he was able or desired to produce additional proof upon that issue. Apart from the allegations in reference to fraud in obtaining the title bond, the bill made a case of non-payment of the greater part of the purchase-money. To amend the prayer of the bill so as to justify a decree consistent with that fact, did not make a new case, nor materially change the substance of the one actually presented by the bill and the proofs. It served only to enable the court to adapt its measure of relief to a case distinctly alleged and satisfactorily proved. The complainants could thereby meet the objection, which otherwise might have been urged, that the nature of the specific relief originally asked precluded the court from giving, under the general prayer, the particular relief which the amendment and the proof authorized.

It is a well-settled rule that the complainant, if not certain as to the specific relief to which he is entitled, may frame his prayer in the alternative, so that if one kind of relief is denied another may be granted; the relief, of each kind, being consistent with the case made by the bill. Terry v. Rosell, 32 Ark. 478; Colton v. Ross, 2 Paige, 396; Lloyd v. Brewster. 4 Paige, 537, 540; Lingan v. Henderson, 1 Bland, 236, 252; Memphis v. Clark, 1 Sm. & Marsh, 221, 236. Under the liberal rules of chancery practice which now obtain, there is no sound reason why the original bill in this case might not have been framed with a prayer for the cancellation of the contract upon the ground of fraud, and an accounting between the parties, and, in the alternative, for a decree which, without disturbing the contract, would give a lien on the lands for unpaid purchase-money. The matters in question arose out of one transaction, and were so directly connected with each other, that they could well have been incorporated in one suit involving the determination of the rights of the parties with respect to the lands. The amendment had no other effect than to make the bill read just as it might have been originally prepared consistently with the established rules of equity practice. It

suggested no change or modification of its allegations, and, in no just sense, made a new case.

Opinion of the Court.

The decision in Shields v. Barrow, 17 How. 130, is invoked, with some confidence, as authority against the action of the court in allowing the prayer of the bill to be amended. That was a suit to set aside an agreement of compromise on the ground of fraud and imposition, and to restore the complainant to his original rights under a contract for the sale of certain lands and other property. The bill was fatally defective as to parties. No decree could have been based upon it, for indispensable parties were not before the court, and could not be subjected to its jurisdiction. The amendment of the bill, there tendered and allowed by the court of original jurisdiction, not only asked that the compromise, if held binding, be specifically enforced, but it brought into the case entirely new issues of fact and law, and made an additional defendant, in his individual capacity and as tutor of his minor children The relief sought by that amendment was, therefore, not within the case set out in the original bill. Nor was the application there, as here, simply to amend the prayer of the bill, so as to ask, in the alternative, for specific relief within the case as originally presented. It was regarded by this court as an attempt, under the cover of amendment, to change the very substance of the case. That such was its view upon the point necessary to be decided is clear from the opinion, for the court said: “To strike out the entire substance and prayer of a bill, and insert a new case by way of amendment, leaves the record unnecessarily encumbered with the original proceedings, increases expenses, and complicates the suit; it is far better to require the complainant to begin anew. To insert a wholly different case is not properly an amendment, and should not be considered within the rules on that subject.” The circumstances of the present case are entirely different from those in Shields v. Barrow. The amendment here did not introduce new allegations, nor make additional parties, nor encumber the record, nor increase the expenses of the litigation, nor complicate the suit, nor make new issues of fact. It simply enabled the court, upon the case made by the original bill, to give the relief which that case justified. Neale v. Neales, 9 Wall. 1, 8; Tremolo Patent, 23 Wall. 518; Burgess v. Graffam, 10 Fed. Rep.

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