himself prompt and eager to perform the contract on his part (Chabot v. Winter Park Co., 34 Fla. 258; 43 Am. St. Rep. 192), yet, under the facts of this case, the defendant is not in a situation to avail itself of the defense of a want of promptness upon the part of the complainant. The defendant does not claim that it was at all times ready and willing to perform the contract on its part. It claims to have known nothing about the contract whatever, it never offered to perform the same or expressed any willingness so to do, or took any steps whatever for that purpose, but, on the contrary, claimed the land absolutely discharged from any equitable title of complainant, and made its defense to the case chiefly upon that ground. "The defendant, in order to avail himself of the plaintiff's delay as a defense, must have performed, or been ready and willing to perform, all the terms of the contract on his own part": Pomeroy on Contracts, sec. 404, and note 2; Leaird v. Smith, 44 N. Y. 618; Van Campen v. Knight, 63 Barb. 205; 3 Pomeroy's Equity Jurisprudence, sec. 1408, and authorities cited in note 1.

We next examine the question whether the defendant, the Pensacola, Gulf, Land and Development Company, is an innocent purchaser for value without notice of the complainant's equities. The evidence, we 450 think, clearly shows a knowledge and notice of these equities on the part of the defendant J. C. Petterson. J. C. Petterson was, at the time of the conveyance by Emma I. Petterson to the Pensacola, Gulf, Land and Development Company, the president of that corporation. He joined with his wife in the deed, and acted in the transaction in her and his own behalf.

It is admitted on both sides that the land involved once belonged to one C. Dowd. It is also admitted, and we think properly, that all persons deriving any interest in the land from or through said Dowd after his contract to sell to Bonifay, and with notice of such contract, are bound to perform the same to the same extent that Dowd would be bound, if he had still retained the legal title in himself: McRae v. McMinn, 17 Fla. 876; Ward v. Spivey, 18 Fla. 847; Pomeroy on Contracts, sec. 493; 2 Pomeroy's Equity Jurisprudence, sec. 688, and authorities cited in note 4. The question, then, is material whether the defendant corporation, the Pensacola, Gulf, Land and Development Company, when it purchased the land from Mrs. Petterson, had notice of the contract of sale through which arose the equity of the complainant. The complainant claims that the corporation had notice, because the defendant J. C. Petterson had such notice while

he was president of defendant. As, in our opinion, there was sufficient notice of complainant's rights by reason of the actual occupation of the premises by himself and his predecessors in possession, it is useless to determine the effect upon the corporation of the knowledge and notice by J. C. Petterson, its president, of such rights and equities. Whether the corporation was or was not bound by such notice to Petterson the result in this case would be the same.

451 It is claimed by the complainant that the actual possession and occupancy of the premises by his predecessors is, of itself, sufficient to charge the defendant with notice of his equitable title. The Pensacola, Gulf, Land and Development Company admits in its answer a knowledge that the occupation and use of the hospital, and grounds inclosed about the same, was held by the Hargises, but was informed and understood that such holding was by consent of Emma I. Petterson and subject to her title. It denies all knowledge or notice of the possession or occupation of the remaining portion of the tract involved in the litigation. The case of McRae v. McMinn, 17 Fla. 876, was in some of its features like the present. There the vendee knew that another was in possession of the land, but believed she was in possession as a tenant, holding under another. This knowledge, coupled with the fact that the instrument which purported to pass title to his grantor, but which was ineffectual to pass such title, was of record, and contained a description of the topography of the land, was held to be sufficient to lead the vendee to inquiry by which he might have learned the nature of the title and claim of the party in possession, and that a court of equity would deem him connusant of it.

In this case, the rule was laid down that a subsequent purchaser, although without actual notice, will be considered a purchaser of the seller's title subject to the equities of the tenant. It may be conceded that the facts of the case hardly required so broad an enunciation of the rule, as there was some actual notice of the possession. Therefore the court said: "The authorities go beyond the case at bar. We think the general rule is, that where a person, other than the grantor, is 452 in possession, it is the purchaser's duty to inquire into the title; and the presumption of law is, that upon such inquiry he ascertains the true state of the title." The broad general rule has often been proclaimed by the courts that, "the actual possession of land is notice to all the world of whatever rights the occupant really has in the premises, and a vendor cannot convey to any other person without

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such person being affected with such notice": Finch v. Beal, 68 Ga. 594; Sewell v. Holland, 61 Ga. 608. In such cases open, visible, actual possession is of itself notice of the rights of those in possession. Actual knowledge of such possession on the part of those sought to be charged with such notice is not necessary. Notice in such cases is legal deduction from the fact of possession: Allen v. Cadwell, 55 Mich. 8; Woodward v. Clark, 15 Mich. 104; Hamilton v. Fowlkes, 16 Ark. 340, and many authorities cited in text; Buck v. Holloway, 2 J. J. Marsh. 163; School District v. Taylor, 19 Kan. 287; Lipp v. Hunt, 25 Neb. 91; Moss v. Atkinson, 44 Cal. 3; McConnel v. Reed, 4 Scam. 117; 38 Am. Dec. 124; Killey v. Wilson, 33 Cal. 690; Lipp v. South Omaha Land Syndicate, 24 Neb. 692; Bank of Orleans v. Flagg, 3 Barb. Ch. 316; Dixon v. Doe ex dem. Lacoste, 1 Smedes & M. 70; Strickland v. Kirk, 51 Miss. 795; Perkins v. Swank, 43 Miss. 349; Doolittle v. Cook, 75 Ill. 354; Metropolitan Bank v. Godfrey, 23 Ill. 579; Noyes v. Hall, 97 U. S. 34.

Under our recording acts, possession has been held to be such constructive notice of ownership as to dispense with the necessity of recording the deed: Massey v. Hubbard, 18 Fla. 688.

453 Some objection of appellee is made that the possession of those through whom complainant derived his equitable title was not such open, visible possession, such as is necessary to give constructive notice of the title of the tenant. There can be no question of this kind as to that portion of the property covered by the hospital, garden, and appurtenances. As to these, it is admitted that the possession was notoriously open and visible, and came within the actual knowledge of the defendant. As to other portions of the tract, it seems that the larger trees suitable for timber had been removed. Those remaining were small, and appear to have been useful only for firewood. Such use was made of them, and the property was protected from trespassers. The limit of the possession claimed was plainly marked, and all the use seems to have been made of the land of which it was capable. Possession, in order to be constructive notice of a claim of title, must be open, visible, and exclusive, and is shown by any use of the land that indicates an intention to appropriate it for the benefit of the possessor. Such use may be any to which the land is adapted, and is calculated to apprise the world that the property is occupied: Truesdale v. Ford, 37 Ill. 210; Wickes v. Lake, 25 Wis. 71. The character of possession proven in this case, if adverse and continued for the statutory period, would give a prescriptive title to the premises under our statute of limi

tations, as it was based upon a written instrument as being a conveyance of the premises in question: Rev. Stat., sec. 1290, par, 2. We think the actual knowledge of the defendant, the Pensacola, Gulf, Land and Development Company, as to a possession of a portion of the premises was sufficient notice to it of that portion, and that the actual, 454 open, visible possession of the remaining portion was sufficient notice as to the remainder, and that the said defendant was not a purchaser without notice of any portion of said land.

The defendant corporation claims that the relief prayed for by the complainant should have been denied because the property had advanced in value. No defense of this kind was made by the answer. The only reference to increase of value that appears in the record is in the testimony of the defendant J. C. Petterson, which was taken after all the complainant's witnesses had testified. The witness was asked to state "the value of the land in this suit when he first became acquainted with it, and its present value (at the time of asking the question), and if the same had increased in value. In reply, the witness stated that when he first became acquainted with the property it was worth one dollar and fifty cents per acre, but at the time of testifying that it was worth about five thousand dollars. This question was objectionable for many reasons, and, if objection had been made in the court below, it and the answer to it should have been excluded from consideration. In the first place, the time inquired about was too remote. The witness had stated that he had been acquainted with the property fourteen or fifteen years. The original contract of purchase was made about six years and a half before the time of giving the testimony. Therefore, he was asked to state the value of the property at a period seven or eight years anterior to the purchase by Bonifay from Dowd, and its value at the time of testifying, which was about eight months after the suit was brought. If the testimony as to increase of value was admissible at all, it should have been limited to some time at or near the time of the 455 Bonifay contract and the bringing of suit. For aught that appears in the record, this remarkable increase of value may have all occurred between the time of the witness' first acquaintance with the property and the contract of purchase by Bonifay, or it might have occurred between the bringing of the suit and the time of taking the testimony. But the greatest-the vital-objection to this testimony is, that it is not relevant to any issue in the case, no defense being made upon an increase in value of the property. It is an

established rule of chancery practice, and of pleading and practice generally, that the allegata and probata must correspond. However full and convincing may be the proof as to any essential fact, unless the fact is averred, proof alone is insufficient: Perdue v. Brooks, 95 Ala. 611. All evidence offered in a case should correspond with the allegations and be confined to the issues: 1 Greenleaf on Evidence, sec. 51. "The requirement ... that the cause of action or the affirmative defense must be stated as it actually is, and that the proofs must establish it as stated, is involved in the very theory of pleading": 2 Rice on Evidence, sec. 292, citing Pomeroy's Remedies and Remedial Rights, sec. 554. A litigant has a right to rely upon his adversary's pleading as indicating the case he is to meet. Otherwise, pleadings would serve no useful purpose except to entrap and mislead the adversary: Southwick v. First Nat. Bank, 61 How. Pr. 164; Romeyn v. Sickles, 108 N. Y. 650. Without committing ourselves upon the point, under the circumstances of this case, whether the question of appreciation in value of the property could be urged as a defense to the relief sought, we are of the opinion that we cannot consider any such 450 defense in the state of the pleadings as shown by the record.

It is also contended by appellee, the Pensacola, Gulf, Land and Development Company, that the decree for specific performance should not pass against it, because it holds its title by a grant from a married woman, and the equity sought to be enforced had its origin and partly accrued before the legal title vested in such married woman. The cases of Lewis v. Yale, 4 Fla. 418, and Goss v. Furman, 21 Fla. 406, are cited to support the contention. It was decided in those cases, especially the last named, that a decree for specific performance could not be rendered against a married woman upon her executory contract for the sale of lands. This decision was but an application of the general principle that a married woman is disabled, by reason of her coverture, to enter into any contract that will bind her, either in law or in equity, so as to authorize a personal judgment against her. In this case, the contract sought to be enforced was not made by a married woman. The only married woman defendant had parted with her title before suit was brought. She was a nominal party to the proceedings, and no relief is prayed against her. Her only connection with the case is, that the title to the property about which the suit was brought was once vested in her, and is held by her grantee. We do not think a vendee of real estate, who purchases with notice of the equities of an oc