¶1 The gist, and largely the substance, of the plaintiff’s alleged cause of action consists in the false and fraudulent representations of the defendants to the feme plaintiff, in which she confided and on which she acted, as to the lines, corner and line-trees and the quantity of the tract of land they sold and conveyed to her as alleged.- The defendants in their answer broadly and much in detail denied the material allegations of the complaint. No question was raised before or on the trial as to whether the plaintiffs alleged, or sufficiently alleged, a good cause of action, as their counsel now seems to suppose. The nonsuit was not founded upon such ground, certainly so far as appears. The plaintiffs produced such evidence as they could, or saw fit to do, and thereupon the Court intimated the opinion that they could not recover, and they submitted to a judgment of non-suit, as they might do.
¶2 We think the suggestion of the Court was well founded. The whole of the evidence accepted as true did not in any reasonable view of it prove the alleged fraud and deceit. The proof was that the defendants pointed out to the plaintiff certain corners and line-trees and lines of the tract so sold, and that these or some of them were not the true ones; but there *488 is nothing to prove that the defendants knew that they were not the true ones, nor that they fraudulently intended to mislead, deceive and get advantage of the feme plaintiff. The proof further was that the defendants “ said the tract had been surveyed and contained one hundred and fifteen acres.” There was nothing to prove that it had not been surveyed, or that it did not contain that quantitjr. The mere fact that the defendants pointed out corners and lines not the true ones, could not of itself prove fraud and deceit, especially in the total absence of proof that the tract conveyed did not contain the quantity of land specified in the deed as “containing one hundred and fifteen acres, more or less.” Indeed, there was no proof, so far as appears, as -to the quantity of land the defendants contracted to sell to the feme plaintiff, or what quantity they conveyed, otherwise than as shown by the deed put in evidence.
¶3 There was no proof to sustain the material allegations of the complaint. In the absence of such proof, it is obvious the plaintiffs could not recover, and the Court hence properly intimated that they could not. There must be probata as well as allegata.
¶4 Judgment affirmed.