
    *Anderson v. Woodford and Others.
    April. 1837,
    Richmond.
    (Absent Brooke and Parker, J.)
    Equitable Relief — Decree by Consent — Mistake Original Bill. — By written agreement between vendor and vendee of land, part of the purchase money is reserved in vendee's hands until a good title shall be conveyed, and is not to bear interest In the mean time ; and this agreement is deposited with a third person. Vendor Hies bill against vendee and parties holding the legal title, ashing a release and conveyance thereof to vendee, and that he be decreed to pay "the balance of the purchase money” (the amount being left blank, and nothing being said of interest): and vendor’s counsel in the suit is one who had assisted in preparing the agreement. Vendee answers that he is ready to pay the balance on receiving a good title, and agrees that as to him the cause may be heard by consent: which .answer of vendee is drawn by vendor's counsel. The agreement is never produced or filed ; and though vendee employs counsel, he employs him merely to ascertain the sufficiency of the title, and the counsel never has his attention directed to any other question. The decree in the cause, which purports to be made by consent, and the draught of which was in fact signed by both the counsel, directs a conveyance to the vendee, and payment by him of the balance of purchase money, with interest thereon from a period several years anteriour to the decree. Vendor’s counsel, who is also assignee of the greater part of the purchase money due, agrees with vendee, on his complaining of the decree, that if he tvill pay the amount so assigned, the question of his liability for interest shall be submitted to the chancellor at the next term. Vendee pays the amount of the assignment, but the counsel fails to submit the question of interest, and sues out execution on the decree- Held, upon these facts, the vendee is entitled to relief in equity ; and such relief may be had by original bill against the vendor and his counsel.
    In 1825, John B. Woodford sold to Thomas W. Anderson, for the price of 6700 dollars, a tract of land in Caroline county, which had been devised to Woodford by the will of his father William C. Woodford. The contract of sale was evidenced by a bond and agreement, in the following terms: *“Know all men by these presents, that we the subscribers are held and firmly bound unto John B. Woodford of the county of.Caroline, in the just and full sum of 2200 dollars lawful money, being a balance in consideration of the purchase of a tract of land called White Hall, by Thomas W. Anderson of said Woodford; to the true and faithful payment of which sum unto the said John B. Woodford, his heirs &c. on or before the 10th day of September 1826 (subject however to the subjoined condition) we bind ourselves, our heirs &c. in the penal sum of 4400 dollars of above like currency. Thus the subjoined condition of the above obligation is such, that whereas Thomas W. Anderson has purchased a tract of land called White Hall of John B. Woodford, and the sum named in the above bond is held and reserved in said Anderson’s hands until all incumbrances shall be removed from said lancl, agreeably to an agreement this day entered into by the parties: now, know all whom it may concern, that should said incumbrances be fully removed within the space of twelve months, then and in that case the above bond shall be valid and recoverable on the 10th day of September next (1826), otherwise not recoverable until all incumbrances are removed; as will fully appear by reference to the agreement above mentioned. In testimony whereof we hereunto set our hands and seals this 10th day of September 1825.” (Signed and sealed by T. W: Anderson and three others.)
    “Know all men by these presents, that the articles "of agreement entered into between John B. Woodford of the one part and Thomas W. Anderson of the other part, for and in consideration of the purchase of a tract of land called White Hall, having been fulfilled so far as the payment of the sum of 4500 dollars, and the execution of a conditional bond with sufficient security, on the part of said Anderson, and the further execution of a deed of conveyance on the part of said Woodford and *his wife Sarah, and Elizabeth Wood-ford the mother of the said J. B. Woodford: this further agreement wit-nesseth that the remaining sum of 2200 dollars shall remain and be reserved in said Anderson’s hands (but not to bear or carry interest) until a deed of trust on said land held by George Buckner shall be fully discharged, and the land purchased by said Anderson of the said J. B. Woodford shall be entirely disencumbered of all liens which may have been imposed thereon by the said J. B. Woodford. It is further agreed and distinctly understood by the contracting parties, that should all incum-brances on said land be removed within the space of twelve months, still and notwithstanding, said Anderson shall not be bound to pay to the said J. B. Woodford the sum of 2200 dollars before the 10th day of September 1826. In testimony whereof the parties have hereunto set their hands and seals this 10th day of September 1825.” (Signed and sealed by John B. Woodford and T. W. Anderson.)
    On this agreement there is the following indorsement: “It is expressly agreed and stipulated that the eight acres of land, part of the White Hall tract, held by mrs. Ann Martin, is not to be considered any part of the incumbrance to be raised by John B. Woodford from the said land, she being entitled to occupy the said eight acres for her life, free from molestation. Witness our hands and seals this 10th September 1825.” (Signed and sealed by T. W. Anderson. )
    At the time of this sale to Anderson, the land was under the incumbrance of a deed executed by J. B. Woodford to George Buckner (mentioned in the agreement) in trust for the purpose of indemnifying Elizabeth Goodwin administratrix of Littleton Goodwin deceased, who in his lifetime had been the executor of William C. Woodford, against demands for which her intestate’s estate might be made liable to creditors of W. C. Woodford, by reason of the said intestate’s having, as executor, permitted *J. B. Woodford to take and dispose of certain. slaves and other personalty bequeathed to him by W. C. Woodford’s will.
    In September 1826, J. B. Woodford filed a bill in the superiour court of chancery for the Fredericksburg district, in which, after setting forth the trust deed executed to Buckner, he alleged that Anderson, who had purchased the land thereby conveyed, ■owed him 2200 dollars, and refused to pay the same without a release from Buckner of the said incumbrance, to which Goodwin’s administratrix declined to consent while any debts due from W. C. Woodford’s estate were unpaid; that the only available claims against that estate were two debts, of small amount, due to Aylett Hawes and Gray Boulware respectively; and that these debts the plaintiff was willing to discharge. Wherefore the bill prayed that Buckner, E. Goodwin’s administratrix, Anderson, Hawes, Boulware, and all other creditors of W. C. Woodford’s estate who had just debts which were made known to the executor before the division of the property, and all creditors with debts binding the heirs or devisees, might be made defendants; that a decree might be made directing a release of the deed executed to Buckner, upon complainant’s satisfying the debts due to Hawes and Boulware, and all others that should be exhibited before a commissioner of the court within a reasonable time after publication for that purpose; that Anderson, on such release being executed, might be decreed to pay complainant “the balance of his purchase money aforesaid, amounting to-” ; and general relief.
    Anderson, in his answer, said that he was ready and willing to pay the money ■mentioned in the bill, when the title to the land should be secured against the claim under the deed of trust, but not before; and that he was willing the cause should be heard as to him by consent.
    *The execution of the bond for 2200 dollars by Anderson was proved by a witness, Thomas G. Thornton, whose deposition was taken in the progress of the cause. On the 12th of February 1827, John .Dickinson the counsel for the plaintiff, who filed the bill and conducted the suit on his behalf, made the following indorsement on the said bond: “This bond is entitled to a credit of 140 dollars when the bond fell due, paid in a young horse to John B. Woodford.” The agreement of the 10th September 1825 was neither exhibited with the bill, nor afterwards filed in the cause.
    On the 8th of May 1827, Woodford the plaintiff assigned to Atwell C. Coleman, 1865 dollars of his claim against Anderson.
    The court having (by consent of the parties, as the record states) directed one of its commissioners to take an account of all debts outstanding against W. C. Wood-ford’s estate, which might be a lien on the land in the bill mentioned, the commissioner reported that the only debts of that character which had been brought forward after due publication of notice to creditors, were a debt due to Aylett Hawes, of 123 dollars 63 cents, with interest on 54 dollars 67 cents part thereof from 1st February 1827, and a debt due to Gray Boulware, of 13 dollars 27 cents, with interest thereon from the same period.
    The suit was pending until the 15th of October 1830; the delay being chiefly owing to the difficulty of ascertaining what claims existed, of the character described in the order of reference. Meanwhile Buckner the trustee died, and the suit was revived against his heirs at law. On the 15th October 1830, the court, with the assent of the defendant Elizabeth Goodwin, decreed that the heirs of Buckner release to Anderson, by proper deed, all their right, title and interest in the land conveyed to said Buckner by the deed of trust; and, with the consent of the parties, decreed further that Anderson pay to his *co-defendants Hawes and Boulware, out of the amount due the plaintiff on the bond executed for the balance of the.White Hall purchase money, the debts and interest reported by the commissioner to be due them respectively, and to the plaintiff the sum of 1972 dollars 2 cents, “with interest thereon from the said 1st day of February 1827 until paid, that being the balance due on that day to the plaintiff upon the said bond, after crediting the said Anderson with 140 dollars indorsed on said bond, and the sums decreed to be paid by him to the defendants Hawes and Boulware.”
    In October 1831, Anderson instituted a suit in chancery in the circuit superiour court of Spotsylvania county, against J. B. Woodford, John Dickinson and Robert Hord. The bill set forth the plaintiff’s purchase of the White Hall tract of land from Woodford, and the terms of that purchase as shewn by the bond and agreement of the 10th .September 1825; stating also the proceedings and decree in Woodford’s suit against the complainant and others, as above detailed, and exhibiting the record of that suit. And then the bill alleged, that Dickinson had been retained as counsel to prosecute the said suit; and complainant, having entire confidence in him, and believing that nothing more was required by Woodford’s bill than payment of the principal sum of 2200 dollars, and not even that until the lien upon the land, created by the trust deed to Buckner, should be removed, felt no hesitation in signing the answer to the bill, which had been prepared for him by Dickinson, to whom he confided the management of the suit so far as he was concerned, and who had himself assisted in drawing the agreement of the 10th September 1825. That complainant therefore took no agency whatsoever in the suit, until some time in 1830, when he requested another attorney, John ly. Marye esq. to examine the papers in reference to the title of the land, and if necessary, to appear for him. That on the 13th September *1826, complainant sold Woodford a horse at the price of 140 dollars, for which he took Woodford’s bond payable on demand, and apprised Dickinson thereof, in order that it might be credited against the 2200 dollars due to Woodford, whenever he should become entitled, according to the terms of the agreement respecting the land, to receive the balance of the purchase money. That on the 24th of October 1829, Atwell C. Coleman assigned to Dickinson his interest in 1865 dollars of the said purchase money, which Woodford had before assigned to Coleman; so that the suit was in effect, after the 24th of October 1829, prosecuted for Dickinson’s own benefit. That Woodford had subsequently assigned to Robert Hord the balance of the claim against complainant on account of the said purchase money. , That notwithstanding the decree against complainant appears to have been rendered by consent, yet the attorney employed by complainant had informed him, that being requested to examine merely the state of the title to the land, he never had his attention directed to any other question, and on being satisfied that a good title could be made, left it entirely to Dickinson to draw the decree; and when the rough draught was presented to him for signature, he signed the same without ever reading it, not dreaming that the .complainant was concerned in any question other than that relating to the title. That complainant never threw any difficulty in the way of a speedy termination of the suit, but was desirous to pay the balance of the purchase money he owed, and so stated to his counsel when he employed him. That when complainant learned, to his great surprise, that a decree for the payment of interest on the said balance had been rendered against him, he announced to Dickinson his determination not to abide by the decree in that respect; whereupon Dickinson agreed, that if complainant would go on to make a payment of 1465 dollars to Coleman on behalf of Dickinson, the ^question of interest should be submitted to the chancellor at the succeeding term for correction. That complainant, resting on this assurance, proceeded to make several payments in satisfaction of that part of the decree which stands in Woodford’s name, amounting in the aggregate to 1870 dollars 36 cents; having, in addition, paid to Hawes and JBoul-ware the amounts decreed to them respectively. Notwithstanding which, an execution on the decree had been recently sued out against the complainant, and placed in the hands of the sheriff; and that too, when the conveyance of the legal title to the land, decreed to be made by Buckner’s heirs, had never been executed. Wherefore, inasmuch as the said decree was unjust, both in allowing interest on the 2200 dollars, and omitting to allow it on the credit for 140 dollars, and was obtained against complainant wholly by surprise, the bill prayed that Woodford, Dickinson and Hord might' be injoined from proceeding under it to coerce any further payment, until the legal title should be conveyed to complainant by Buckner’s heirs; and that he might then be subjected only to the payment of what should prove to be justly due on the said bond for 2200 dollars, after deducting Wood-ford’s bond for 140 dollars, with interest from the date thereof, and the several sums paid since the rendition of the decree.
    With his bill, the complainant exhibited a letter written by Dickinson, on the 20th November 1830, to J. L. Marye, in the following terms: “D’r sir, I saw mr. Thomas Anderson to-day, and he says he conceives, according to the contract with J. B. Wood-ford, he is not to pay interest on the bond on which I got the decree last term. I have agreed, if he will settle 1465 dollars for me with Atwell Coleman, to let the case rest till next term, and submit the agreement to the chancellor. And that his payment to Coleman on my order may not prejudice his claim to corrections, I told him I would write to you on the subject, and he promised to paj' Coleman *if you should decide that it would not prejudice his claim. I draw the order in favor of Coleman guarded as to that subject, and I hope you will say that he can run no risk. Atwell Coleman’s assignment to me on mjr giving him my bond, I have sent to the clerk to file with the papers. It will greatly oblige me to have Coleman paid the 1465 dollars, as he is pressing me for it.”
    The injunction prayed in the bill was awarded.
    Dickinson answered, that he had no recollection of having ever seen the agreement mentioned in the bill, and that complainant for the first time stated to him the existence of an agreement by which he was exempted from paying interest, when the notice was given for taking the deposition of Thomas G. Thornton; on which occasion, and repeatedly afterwards during the pendency of the suit, respondent urged him to produce and file the agreement, as the duty of respondent to Woodford, his client, forbade the allowance of the claim to such exemption, unless it had been clearly stipulated : but the complainant could never be persuaded to produce the paper. Respondent utterly denied that complainant had the slightest ground to rely on him for protection against the payment of interest, though he did undertake to guard him against liens on the land. He admitted that, having become Woodford’s surety for the debt he owed Coleman, and Woodford being insolvent, he had executed his individual bond to Coleman for the debt, and taken Coleman’s assignment to himself of the interest which Woodford had previously assigned to Coleman in the purchase money due from Anderson. He admitted that after the decree was rendered, Anderson did complain of it for allowing interest, and proposed to leave the matter to reference, which, without reflection, respondent partially assented to; but reflecting that others were interested, he informed Anderson that he must decline it: afterwards, however, he wrote that if * Anderson would go on to pay Coleman the amount of the order which respondent had drawn in his favour, pnd take in respondent’s bond, he would have no objection to submit the question of his pretensions to the chancellor. He admitted the payments which Anderson alleged he had made on account of the decree. And he stated that the execution against Anderson was sued out upon the requisition of Robert Hord, who was Woodford’s assignee of so much of the purchase money as had not been assigned to Coleman.
    Woodford and Hord answered severally; the former stating that he had no recollection of the particular terms of the agreement with Anderson, as respecting the payment of interest, and the latter disclaiming all knowledge on the subject of Anderson’s claim to exemption ; and both of them referring to Dickinson’s answer, and insisting on the decree.
    It was proved by the deposition of a witness examined in the cause, that the in-dorsement, under date of 10th September 1825, upon the agreement between Wood-ford and Anderson, was wholly in the handwriting of the defendant Dickinson. And it was further proved that the said agreement had remained, from the time of its execution until after the rendition of the decree, in the custody of Thomas G. Thornton, the same individual who was examined as a witness for Woodford, to prove the execution of the bond for 2200 dollars.
    John D. Marye was also examined as a witness. His deposition sustained all the statements of the bill, in reference to his employment and agency as Anderson’s counsel. He said, that Dickinson having informed him, that the decree which he had prepared was in conformity with deponent’s views in regard to the removal of the lien created by the deed to Buckner, deponent thereupon signed the decree without ever reading it; not dreaming, at the time, that Anderson had any interest in the matter other than in regard to the title, which deponent *had, as he conceived, sufficiently guarded. Deponent further stated, that, understanding Dickinson’s letter as amounting to an agreement on his part to submit the question of the liability of Anderson for interest to the chancellor, he devised Anderson to make the payment desired by Dickinson.
    The cause was heard on the 6th of July 1833: whereupon the chancellor, being of opinion that it would be dangerous to violate the rule established in chancery, by no means to set aside a decree obtained by consent of counsel on both sides, where there is no collusion or fraud in the case, — decreed that the bill be dismissed, but without costs. From this decree Anderson appealed to this court.
    Heigh, for appellant.
    Johnson, for appellees.
    
      
       Equitable Relief— Mistake. — A court of equity will interfere in cases of mistakes in judgments and other matters of record injurious to the rights of the parties. Fore v. Foster, 86 Va. 106, 9 S. E. Rep. 497. citing the principal case.
    
    
      
       Same — Decree—nistake - Original Bill. -In order to obtain relief in equity from injuries sustained by reason of surprise or mistake, as a general rule, it is proper to file an original bill impeaching the decree on that ground. Spilman v. Gilpin, 93 Va. 708, 35 S. E. Rep. 1004, citing the principal case.
      And in Smith v. McLain. 11 W. Va. 667, it is said: “x\n original bill is the only proper remedy to set aside a judgment obtained by fraud, accident or mistake, or to obtain relief from such judgment in the nature of a new trial of the case. Even when a. iinal decree is obtained in that manner, the proper mode of obtaining relief is not by a bill of review, or other proceedings in the chancery canse, but by an original bill: Estill & Eakle v. McClintic et al., and Manion v. Fahy, decided at the present term of this court; and also Mussell v. Morgan, 3 Bro. Ch. R. 79, and Anderson v. Woodford, etc., 8 Leigh 316.” To the same effect, see the principal case cited in Manion v. Fahy, 11 W. Va. 494.
      In Manion v. Fahy, 11 W. Va. 495, it is said: “A decree, other than a consent decree, which has been entered by surprise or by mistake of the parties, * * * whether interlocutory or final, should beset aside by a new suit for the purpose. The case in 8 Leigh (principal case) was one of surprise rather than fraud. The authorities however on the question whether an interlocutory decree, not entered by consent, blit procured by fraud, surprise or mistake of the parties, can be set aside by a bill in the nature of a bill of review, or by a petition for a rehearing, are not clear or distinct, though the probable inference to be drawn from them is. that such interlocutory decrees cannot be so set aside, but only by an original bill. See Mussell v. Morgan, 3 Bro. Oh. Cas. 74; Anderson v. Woodford et al., 8 Leigh 316; Mann v. Worrell, 16 Barb. 221; Sandford v. Sandford, 5 Cal. 237; Evans v. Bacon. 99 Mass. 213; Johnson et al. v. Johnson et al.. 35 Ill. 215: Bank of United States v. Ritchie, 8 Pet. 128.”
      See generally, monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
   TUCKER, P.

The agreement filed in this case admits of no doubt as to the exemption of Anderson from interest until the incumbrances were all removed; and the decree having given interest from a date long anteriour, the appellant has been injured, and his adversaries have recovered some hundreds of dollars to which they have no title. The case then, upon the merits of his demand, seems clear. The questions presented are, whether he has title to any redress, and whether the remedy pursued by him is the proper one.

I do not think there has been any gross negligence in this case, on the part of Anderson. The suit was not, in its origin, a controversy between him and Woodford. It was brought to perfect the title and extinguish the incumbrances; and so far was it from being considered a matter of contest between them, that the same counsel drew both bill and answer; and the answer was merely formal. Indeed the bill had set forth the demand against Anderson in blank; thus leaving him fairly *to infer that the decree would be taken according to the contract. That he was afterwards warned by Dickinson and repeatedly urged to produce the agreement, is alleged indeed in the answer of Dickinson, but not proved in the cause; so that, for aught that appears, he still acted under the impression that the suit was rather the joint concern of himself and Woodford, than a suit between them. It is remarkable, too, that his application to counsel was to assist mr. Dickinson in the prosecution, instead of contesting any matter with him: and it is not less remarkable that the sagacious and vigilant counsel thus employed should obviously have had the same impression throughout, “never dreaming that Anderson had any interest in the matter other than in regard to the title.” He accordingly had the decree entered by consent, and seems to have taken it for granted that it was for the proper amount. To me this appears to have been a complete surprise; and a surprise, too, produced by the plaintiff’s setting forth his claim in blank, — pretending to no title to interest, and failing to produce the documentary evidence of his demand, which it was in his power to produce, for it was in the hands of the very witness whose deposition he took to prove the bond, which bond refers to the agreement.

Independent of every other consideration, then, it would seem that Anderson was entitled to relief. But the case does not rest here. After the decree is rendered, and before it is carried into execution, Anderson demands its correction, and Dickinson engages to submit the matter to the chancellor, if certain payments were made; which stipulation was substantially complied with by Anderson. But Dickinson did not submit the matter; and this bill was the consequence. That Dickinson, if he had owned the whole of the debt, would have been bound by this engagement, cannot be questioned. The iniquity of pocketing a considerable sum *which did not belong to him would have laid the ground of a moral obligation sufficient to sustain the promise. But in truth he owned only a part of the debt, and the deduction was destined to fall on those entitled under Woodford to the residuum. Vet he was their counsel; his power over the cause yet continued, and he had a right to bind them by an engagement to submit the matter to the court, whereby a suit would be avoided for the correction of the error. That the consent to the decree given by counsel was under the influence of mistake, seems obvious ; and it was therefore susceptible of correction,, either by bill of review or in some other mode. Dickinson had a sufficient motive, then, for consenting to submit the matter to the judge, upon receiving a very large payment, instead of leaving the defendant Anderson to file a bill of review, or a bill impeaching the decree, and in the mean time to retain the whole money in his hands. This view of the case satisfies me, not only that the plaintiff is entitled to relief, but to relief by way of original bill. I will add, however, that I see no reason to doubt that an original bill will lie to set aside a decree obtained by surprise, as well as one obtained by fraud. There is no doubt that equity relieves equally against surprise or fraud in judgments at law; and there is no assignable reason why it should not relieve against surprise in equity. The only question is, whether it should . be by bill of review or original bill. It cannot be by bill of review for matter in law, for that is inappropriate to the nature of“the case. Nor can it in all cases be by bill of review for new matter discovered since the decree; for (as in this case) there may be surprise, and yet it may not arise out of new matter upon which to ground a bill of review. An original bill impeaching the decree on the ground that it has been obtained by surprise or mistake, is then the proper remedy. It is the remedy recognized in the case of Erwin v. Vint, 6 Munf. 267, where a decree by *default was obtained under circumstances of surprise; and the like principle is conceded in the case of Callaway v. Alexander &c. decided a few days since. Admitting, as it seems to me it must clearly be admitted, that the consent decree has been entered under a mistake (and that mistake an innocent one) and that the counsel for the party agreed that the matter should be submitted again to the court for its decision, I think it must be conceded that this bill was the proper remedy, instead of a bill of review, which would bring again before the court the numerous parties to the former litigation.

I am of opinion to reverse the decree, and send the cause back, for the purpose of adjusting the balance really due, and for further proceedings.

CABELL and BROCKENBROUGH, J., concurred.

Decree reversed and cause remanded. 
      
       Reported ante, p. 114.
     