
    *Nash v. Nash & als.
    July Term, 1877,
    Wytheville.
    1. Chancery Pleading — Uncertainly—Effect. — Where in a suit in equity, the rights of the parties involves the decision of questions which were not put in issue by the pleadings, or so vaguely and uncertainly as not to inform the opposite party of what were the issues between them, so that lie might prepare his case in a way to secure a full investigation by the court, and a decision according to the very right of the case, and which would do justice to all concerned, the appellate court will reverse the decree of the court below, and Send the cause back, will leave to the parties to amend their pleadings.
    3. Same — Unrecorded Deeds — Allegations. —Where the bill does not, in terms, allege that the plaintiff had no knowledge of an unrecorded deed of trust when he purchased the land, though it might be construed as virtually making such averment; and it is not affirmatively averred in the answer that he had such notice, so as to put that matter in issue; proof upon that question by both parties was upon a matter not issue in the cause.
    In April, 1861, Samuel H. Nash brought his suit in equity in the circuit court of Russell county, against William Nash, Charles S. Bekem and John M. Preston. In his bill he says that on the 31st of March, 1861, he purchased of his brother, William Nash, certain lands in Russell county, being seven-tenths of the lands of their father Wm. Nash, deceased, and also other adjoining lands which he describes. That Wm. Nash wrote, signed and delivered to complainant what he called a title bond, and which he filed as part of his bill marked A. That complainant being unlearned and ignorant, supposed the said bond to be properly written, and set forth the contract plainly and definitely, *though he is now told that the same is very awkwardly and vaguely drawn. He charges that at the time of the contract, Wm. Nash, as administrator of their father and also of their mother, and as complainant’s guardian, owed him a large sum of money. That no settlement had been made, and it was agreed and inserted in the said bond (though very indefinitely) that whatever was due by Wm. Nash to the complainant on these accounts should be credited towards the purchase money of the lands. That Wm. Nash also owed him for ten or twelve years work, and there were other claims held by complainant against him, for all of which he was to have credit, and a settlement was to be made and the whole matter closed up. He charges that he had made frequent efforts to have a settlement with William Nash, and they made frequent appointments of time and place to meet and close tsie matters between them, but that he always failed to attend. Being a brother, complainant has borne with him thus long, and probably would have still delayed to resort to law, but not very long since complainant was told, to his great surprise, that there was a deed of record in Russell conveying to Charles S. Bekem the lands sold complainant, together with other tracts, in trust, to secure a debt due by William -Nash to John M. Preston; and to his still greater astonishment on the 3d of April 1861, he saw an advertisement on the front door of Russell C. H. for the sale of these lands on the 23rd of April, Í861. The advertisement was dated the 9th of March, 1861. A copy of this deed is filed as a part of the bill, and complainant understands that the debt due by said deed has been paid down to about $2,000. And complainant further understands and charges that the lands lying in Scott county and conveyed by said *deed. are more than sufficient to pay the debts secured by the deed if the whole were still due.
    The complainant charges that the execution of this deed by William Nash _ was a great fraud, and breach of faith on his part, and a sale of • the lands claimed by complainant would result in his ruinj for everything of value he owns is invested in said lands, and he is not able to purchase for cash at the trusJtee’s sale. He believes that on a settlement with William Nash he will be found to have fully paid the purchase money. He prays .that Bekem and Preston be restrained from selling under the said trust deed the lands in Russell county claimed by complainant, until the lands in the county of Scott shall be sold, and shall prove insufficient to discharge the debt to Preston; that an account be taken between complainant and William Nash of all matters in which William Nash is concerned either as individual or as guardian of complainant, or as administrator of William Nash or Margaret Nash; that William Nash be decree to convey the land sold to complainant upon its appearing that the purchase money shall have been paid; or if he cannot by reason of the trust deed or otherwise, specifically execute the con- ’ tract, that he be decreed to pay to the complainant what in justice and in equity may be due to him under all the circumstances; and for general relief.
    The injunction was granted. And at June rules 1861 William Nash filed his answer. •He states at length his construction of the paper filed by the plaintiff as a contract, and insists it was no contract, but a proposition, which from the refusal of a party to whom the plaintiff was-to pay a part_ of the purchase money, to take the plaintiff as his debtor, unless the defendant would convey the land to the plaintiff, and he would *give a deed of trust to secure it, which defendant refused to do, the proposition .fell; and that plaintiff is wrong in saying there is a contract between him and respondent. He states a number of claims he had against plaintiff; from which,• and from the provisions of an article of partnership between them, he says it may readily be inferred that the respondent does not owe the complainant anything, and that the complainant is in his debt.
    After the filing of 'this answer the case seems to have slept until M!ay 1868, when the death of John M. Preston was suggested, and it was ordered that the suit be revived against James M. Preston, surviving administrator of Walter Preston, and as administrator óf John M. Preston, deceased, and that he have leave until June rules to file his answer.
    Nothing further was done until October .1870; when .the court made an order in which the death of John M. Preston was again suggested, and that Walter Preston, by gift from John M. Preston, became entitled to the fund secured by the deed of trust, and that he was dead; it was entered that the suit be revived against John M. Preston’s administrator, and that plaintiff should amend his bill and make the administrators of Walter Preston parties.
    The amended bill was accordingly filed; and at the April term, 1871, Bekem and the administrators filed their answers. Bekem makes a statement of credits upon the debt secured by the deed of trust, allowed'by John M. Preston, up to November 1858, and credits _ for payments made by William Nash since, and also of orders drawn upon him by Walter Preston, to be paid when moneys were received from the trust fund. He refers to the answer of William Nash as to the paper relied on by the plaintiff as a contract, anjl *insists it was but a proposition, not accepted by the plaintiff, and certainly never complied with in any way. He says: Even had it been accepted as a contract, nothing was known of the pretended purchase till the bill of the complainant was filed. When the trust was executed Jhe records of Russell showed no claim or incumbrance upon the lands; and, though there might have been a contract between complainant and William Nash for part of the land conveyed by the deed of trust '(and that is not admitted), unknown to John M. Preston and not on the record, it could not be set »up to the prejudice of the said Preston.
    The administrators of John M. and Walter Preston, after stating the gift of the debt by John M. to Walter Preston, say: The complainant claims that he purchased of William Nash certain property contained in the trust, while William Nash denies it. Even if he did contract for it (and that is not admitted), it cannot be set up and enforced to the prejudice and injury of the estate of Walter Preston. Nothing was known or heard of the alleged purchase till about the time of the filing of the bill by complainant, as respondents are informed.
    At the September term of the court for 1872 the cause was referred to a commissioner to state and settle an account of the transactions in controversy between the plaintiff and the defendant William Nash, and also an account showing the amount of the debt due by William Nash to John M. Preston, .the several payments made thereon, or the credits proper to be allowed, and to whom the remaining portion of the debt is due, &e.
    In May 1873 Bekem filed in the clerk’s office a statement showing moneys which had been received *from William Nash by the Prestons and himself on account of the debt secured by the deed of trust, and also a statement of his sale of the land embraced in the deed which was not covered by the injunction of the plaintiff. And in August 1873 the commissioner made his report. After allowing the credits for moneys received as aforesaid and the'bonds given for the purchase money of the lands sold by the trustee, he stated the amount due July 24th, 1873, at $7,237.60, of which $4,488 was principal. He makes statements of the different accounts between the plaintiff and William Nash; and the result is, that on the 1st of March 1851, when William Nash executed the instrument purporting to be a title bond, he was indebted to the plaintiff to an amount equal to the purchase money of the land in controversy. And he mentions other credits claimed by the plaintiff which he did not bring into the account.
    William Nash excepted to the report: 1st. Because every item charged in the account is barred by the statute of limitations. 2d. Because by the terms of the paper A, which plaintiff claims as a title bond, he was to pay to James R. Canell $1,000 at once, and was to pay the defendant $1,000 more in six weeks from the date of the paper, $600 more in October, and the balance in eighteen months. 3d. Because the hires of slaves is estimated too high, and also the wages of complainant. _
    _ Neither the account nor the evidence is in the record, though the report of the commissioner giving the result of the account is; and it shows that a number of witnesses were examined before him. It is unnecessary to set out the paper A filed with the bill. Both the circuit court and this court held it to be a contract for the sale of the land. The deed of trust *in favor of Preston was dated the 18th of April 1850. The clerk’s certificate stated that on the 30th of April 1858 it was proved before him in the clerk’s office of Russell county by two of the subscribing witnesses, naming them, and on this the 7th day of September 1858 admitted to record.
    The cause came on to be heard on the 10th of March 1874; when the court overruled the exceptions of the defendant William Nash, and held that, charging the plaintiff with the whole price of the land purchased by him of William Nash and all other charges, and crediting him with all offsets and payments, the said William Nash will be indebted to him the slim of $2.96, as of the 1st of March 1851; and that said plaintiff is entitled to a conveyance of the land from the defendant Nash; but that the trust deed had priority over his claim. It was therefore decreed that William Nash pay, in consideration of the lands sold by him to the plaintiff, to C. S. Bekem, trustee, the sum of $7,217.60, with interest on $4,488, part thereof, from the 20th of July 3873, being the balance secured by the said deed of trust. And it was further decreed that the injunction granted to the plaintiff be dissolved, and that Bekem proceed to sell the land embraced in the deed of trust upon the terms of the deed, unless, &c.
    From this decree the plaintiff, Samuel H. Nash, applied to this court for an appeal; which was allowed.
    
      W. IT. Burns, for the appellant.
    
      Johnston & Trigg and White & Buchanan, for the appellees.
    
      
      Chancery Pleading — Uncertainty -Effect.—See Fisher v. White, 94 Va. 236, citing the principal case; Barton’s Ch. Pr. (2nd Ed.) 275, and cases cited.
    
   Anderson, J.,

delivered the opinion of the court.

*The court is of opinion, that the plaintiff. Samuel H. Nash, fairly purchased the lands in question from the defendant William Nash, as evidenced by the paper made an exhibit in the cause, bearing date March 31st, 1851, and marked (A); that he was let into possession, and continued in the quiet and peaceable possession of the same, under his said contract, from the date of his purchase until the bringing of this suit; that he had fully paid the purchase money at the date of his contract, and is entitled to a conveyance of the title from the said Wm. Nash. And consequently that there is no error in the interlocutory decree of the 10th of March, 1874, as between the plaintiff and the defendant Wm. Nash; and in this respect it must be affirmed.

The court is further of opinion, that there is no error in the decree, so far as it ascertains the balance due of the debt of Wm. Nash to John M. Preston, which he under- . took to secure by deed of trust, and to that extent, and in thát respect, it is also affirmed.

But the decision that the deed of trust has priority over the contract of sale to Samuel H. Nash involves the decision of questions which were not put in issue by the pleadings, or so vaguely and uncertainly, as not to inform the opposite party of what were the issues between them, so that he might prepare his case in a way to secure a full investigation by the court, and a decision according to the very right of the case, and which would do justice to all concerned.

The bill does not allege in terms that the plaintiff had no knowledge of the then unrecorded deed of trust when he purchased the lands, though it might be construed as virtually making such averment. And it is not affirmatively averred in either of the answers ’That he had such notice, so as to put that matter in issue. So that the proof upon that important question, which was given by both parties, was upon matter which was not in issue.

Again, the bill does not allege that the plaintiff had possession under his contract, though there is proof of it in the record. It alleges, substantially, payment of the purchase money; but does not allege notice to Bekem, the trustee, or to the beneficiaries of the trust deed, when they had it recorded, of the prior sale to him of the lands in question. Nor does he allege that he had held such possession and improvement of the lands from 3 851, the date of his purchase, until the recording of the deed of trust, on the 7th of September, 1858. and thereafter, as would charge the trustee and the beneficiaries of the trust, with notice of his prior equities.

It is true that C. S. Bekem, and R. H. Lynch and James W. Preston, administrators, in their answers, virtually deny notice at the recordation of the deed of trust, of the prior contract of sale to the plaintiff; but notice not having been charged in the bill, and especially as the bill only specifically seeks to require the trust creditors to subject the lands in Scott county, which were not a part of his purchase, but which were conveyed' by the deed of trust, before they undertook to subject the lands which he had purchased, to the payment of the trust debt, the trustee and trust creditors might well have inferred that it was not the purpose of the plaintiff, in this suit, to set up his contract of purchase against their deed of trust.

The plaintiff alleges in his bill, which doubtless he then believed, that the Scott lands were enough to pay the trust debt. And consequently he did not deem it necessary_ to litigate the question of priority of right *between him and the trustee as to the lands he had purchased. But it turns out in the progress of the cause, that the trust debt was much larger than he supposed, and that the sum realized from the sale of the Scott lands fell greatly short of his estimate, or of paying the debt. (This is not surprising, when we consider the extraordinary disturbances and revulsions to which this country has been subjected since his bill was filed in 1861. and which have greatly depreciated the values of real estate.) The Scott lands proving so insufficient, and the defendants renewing their efforts, and purposing to subject the lands which the plaintiff had purchased (which seems to have been suspended), to the payment of the large arrearage of tlieir debt, he was forced to go into this litigation or to surrender his purchase. He seeks, therefore, upon the proofs in the cause, to establish a preference for his contract of purchase over the subsequently recorded deed of trust. Whether he can, upon the prayer for general relief, without an amendment of the pleading we deem it unnecessary to decide, in view of the conclusion we have reached, as to the proper disposition of the case. If he could, it seems to the court, that it might be a surprise to the trustee’ and the beneficiaries under the deed of trust; and that, on the other hand, it would be unjust to the plaintiff, under the circumstances of this case (which have been merely glanced at), to deny to him the privilege of litigating the question of priority of the deed of trust over his purchase.

As to that question, the court deems it improper to intimate an opinion until the question has been fairly put in issue, and each party has had an opportunity to fully prepare and mature -his case. As the case now *stands, a decision might do injustice to one or the other of. the parties.

The court is of opinion, therefore, to reverse and set aside that part of the decree which decides that the trust deed has priority over the contract of purchase, and which dissolves the injunction and directs a sale of the lands in question, and to remand the cause to the circuit court, with instructions to allow the plaintiff to file an amended and supplemental bill, if he desires it, in which, to put fairly and directly in issue, the matters hereinbefore adverted to, or any other matters deemed important by the plaintiff, and which are proper; and also to allow the defendant, Bekem, trustee, and the beneficiaries of the trust, to make any amendment to their answers which they may desire and which may be proper; and for further proceedings to be had therein in order to a final decree.

The decree was as follows:

The court, having maturely inspected the record in this cause, for reasons stated in writing and filed with the record, doth affirm so much of the interlocutory decree of the 10th of March 1874 as confirms the sale of the lands in question by William Nash, one of the defendants, to Samuel H. Nash, the plaintiff; declares that the whole of the purchase money had been paid at the date of the contract of sale, and that the plaintiff is entitled to a conveyance of the title to said lands from the said William H. Nash; and also so much of said decree as ascertains the balance due of the debt from William Nash to John M. Preston, which the deed of trust in question was given to secure. And the court *being further of opinion that under the pleadings the cause was not in a condition to decide the questions of priority of right under the deed of trust and the contract of purchase, so as to secure a fair and just decision thereof between the parties, it is adjudged, ordered and decreed, that so much of said interlocutory decree as decides that the deed of trust had priority, dissolves the injunction, and directs the sale of the land, be reversed and annulled; and that the appellees pay to the appellant his costs expended in the prosecution of his appeal here; and that the cause be remanded to the circuit court, with instructions to allow the plaintiff, if he desires it, to file an amended and supplemental bill in which to put in issue the question aforesaid and any other matters which may be proper and rel- , evant, and to allow the defendants, or either of them, to file amended answers, to put in issue any other matters which they may desire'snd which may be deemed proper and relevant, and for further proceedings to be had therein in order to a final decree.

Decree reversed. 
      Preston v. Nash, 75 Va. 949, and Preston v. Nash, 76 Va. 1, are continuations of the principal case.
     