Title by alleged gift failed where concurrent factual findings stood and an unpleaded alternative gift case could not be raised.

Title to land could not be established on the alleged gift because the evidence was rejected by both lower courts and those concurrent findings of fact were not displaced. The alternative claim of a gift by the widow also failed because it had not been pleaded in the defence, and evidence cannot be admitted to support a case never put forward. The appellant therefore failed to prove title on either basis, and the appeal was dismissed.

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Issues: Whether the appellant established title to the lands on the basis of an alleged gift and, alternatively, on the basis of a gift by the widow, when that alternative plea was not raised in the defence.

Analysis: The evidence supporting the alleged gift was rejected by both courts below, and those concurrent findings of fact were not displaced. The alternative case that the widow herself made a gift was not pleaded in the defence, and evidence cannot be admitted to sustain a case never put forward.

Conclusion: The appellant failed to establish either basis for title, and the appeal was dismissed.

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