
    *Mettert’s Adm’r v. Hagan.
    January Term, 1868,
    Richmond.
    Chancery Practice — Deeds—Case at Bar. — M, in his lifetime, conveyed by deed to H, M’s interest in the estate of J deceased, upon the consideration, as expressed in the deed, of $1,000. After the death of M, H files his bill to recover the said interest; and M’s administrator resists it, on the ground that M was incapable from drink of making a contract, and that the deed was obtained by the fraud of H, and that H gave no consideration for it. The evidence touching M’s competency being contradictory, and there being some proof that M had confirmed the deed after its execution. Held:
    1. Same — Issue Out of Chancery — Proper. —An-issue should be directed to ascertain: 1st. whether the deed had been procured by fraud; and, 2d.v If procured by fraud, whether it had afterwards been confirmed by M, without coercion or restraint, when he was competent to act. ,
    2. Deeds — Consideration.—If it had not been procured by fraud,-or if it had been confirmed by M without coercion and when he was competent, H is entitled to a decree for M’s interest in the estate of J, without regard to the value of the consideration paid therefor.
    3. Chancery Practice — Answer in Lieu of Cross-lliil. —Though according to the strict rules of pleading-. a "bill or cross-bill should have been filed to set aside the deed, yet the answer of M’s administrator may, for that purpose, be treated as a cross-bill, so as to enable the court to do ample justice in the cause.
    In August, 1866, John Hagan filed his bill in the Circuit Court of the city of Richmond against the administrator of George W. Mettert deceased, and others, in which *he stated, that in July, 18S9, George W. Mettert, by deed which was exhibited with the bill, conveyed to the plaintiff his interest in the estate of Dr. John H. Mettert deceased. That this estate had been sold and invested under the discretion of. the court in two suits pending therein. And he asked that the share of said estate to which George W. Mettert was entitled as heir and distributee of Dr. Mettert might be decreed to him. The deed purports to convey the interest of G. W. Mettert in the estate of Dr. J. K. Mettert, in consideration of Si,000.
    George W. Mettert’s administrator answered the bill. He charged that the deed from his intestate to the plaintiff had been procured by the fraud of the plaintiff. That Mettert was at the time of making the deed, and had been for years previous, and continued up to the time of his death, from excessive intemperance, incapable of making a valid contract; that his intellect, naturally weak, had been so impaired by his excesses as that he was little better than a drivelling idiot. That Hagan had taken advantage of his condition; had induced him to stay at his house, and had there plied him with liquor until he obtained the said deed from him. That Hagan never gave any consideration for the deed, which conveyed an interest worth at the time near $6,000; and though it had been impaired by the war, was still worth upwards of $3,000. The defendant therefore asks, that the deed may be declared null and void, for ihe fraud in its procurement and the incapacity of the grantor to transact business; and that the interest of G. W. Mettert in the estate of J. H. Mettert may be decreed to the defendant.
    A number of witnesses were examined, both by the plaintiff and the defendant, as to the condition of George W. Mettert about the time of the contract. Some of these witnesses stated he never was sober about that time, and *for some time previous, and that he had not capacity to transact business. Others said that he was sometimes sober, and was able to contract.
    There was some proof of his staying at Hagan’s house for a time in the year 1859.
    The cause came on to be heard on the 3d of May, 1867, when the court expressed the opinion, that the defence set up in the answer was not sustained by the proofs, and decreed that the interest of George W. Mettert in the estate of John H. Mettert should be paid to Hagan. From this decree, George W. Mettert’s administrator applied to this court for an appeal, which was allowed.
    Johnson & Guigon, for the appellant.
    N. Howard and Roberts, for the appellee.
    
      
      Issue Out of Chancery — Question of Judicial Discretion. — In Powell v. Batson, 4 W. Va. 617, the court said: “That the chancellor has a discretionary authority to direct, or to decline to direct, an issue to try any material fact put in issue by the pleadings in the cause,- is not doubted, and the doctrine is well settled by the authorities. Such discretion, however, it is equally well established, is a sound or legal discretion, and its improper exercise, either in directing or declining to direct an issue, may be reviewed and corrected by the appellate court. Wise v. Lamb, 9 Grattan 294; Mettert’s Administrator v. Hagan, 18 Grattan 231.”
      See further the principal case cited in Fishburne v. Ferguson, 84 Va. 102, 4 S. E. Rep. 675; Steptoe v. Pollard, 30 Gratt. 702. See also, on this point, Beverley v. Walden, 20 Gratt. 147, and footnote; Magill v. Manson, 20 Gratt. 527, and footnote; Hord v. Colbert, 28 Gratt. 49, and footnote.
      
      See generally, monographic note on “Issue Out of Chancery” appended to Lavell v. Gold, 25 Gratt. 473.
    
    
      
       Chancery Pleading — Answer in Lieu of Cross-Bill. — • Mr. Minor (4 Min. Inst. [3d Ed.] 1380) says: An answer has sometimes been treated as a cross-bill, in order to enable the court to do complete justice; and still more readily, as a petition from persons interested, to be admitted as defendants to the original bill, and to be allowed to defend their rights. (Mettert v. Hagan, 18 Gratt. 231; Sayers v. Wall, 26 Gratt. 354; Piedmont & Arlington Ins. Co. v. Maury, 75 Va. 514; Preston v. Heiskell, 32 Gratt. 61; Cralle v. Cralle. 79 Va. 182; Adkins v. Edwards, 83 Va. 300. 2 S. E. Rep. 435.)”
      As further authority on this point, see Tate v. Vance, 27 Gratt. 571, and foot-note, where there is a collection ol cases on this subject; and see the principal case cited in Kraker v. Shields, 20 Gratt. 397: Kendrick v. Whitney, 28 Gratt. 654; Ragland T. Broadnax, 29 Gratt. 422; Wayland v. Crank, 79 Va. 604; Sturm v. Fleming, 22 W. Va. 412; Cunningham v. Hedrick, 23 W. Va. 591; Livey v. Winton, 30 W. Va. 562, 4 S. 14. Rep. 456; Leonard v. Smith, 34 W. Va. 447. 12 S. E. Rep. 481: Douglass v. Laird, 37 W. Va. 703, 17 S. E. Rep. 194; Paxton v. Paxton, 38 W. Va. 624. 18 S. E. Rep. 768.
      Same -Substance and Not Form Regarded. — In Martin v. Smith. 25 W. Va. 583, the court said : “In this state and in Virginia, it has been held that a literal compliance with forms is not required by courts of equity, they regard substance rather than mere form, and so mould and treat pleadings as to attain the justice of the case. Under this rule, a petition for a rehearing has been treated as a bill of review when the facts made it necessary to so regard it, and a notice to correct a decree on bill taken for confessed has been treated’,as a petition for a rehearing. Kendrick v. Whitney, 28 Gratt. 646. A bill of review has been treated as an original bill, or a petition in the nature of an original bill. Hill v. Bowyer, 18 Gratt. 346; Mettert v. Hagan, Id. 231; Sturm v. Fleming, 22 W. Va. 404: Riggs v. Armstrong, 23 Id. 760.”
      Same -Bill Treated as Cross=Bilf and Answer.--In Gregg v. Sloan, 76 Va. 501, the court said : “In such a case, the bill filed by the trustees (which was sworn to) may be treated as an answer by way of defence to Gregg’s bill, and at the same time as a cross-bill, asserting the claim of the complainants to counter relief in the same cause. For, so dealing with the proceedings, we find a striking precedent in the somewhat analogous case of Kyle’s Ex’or v. Kyle. 1 Gratt. 526, wherein the court gave to the bill ‘the double function of an answer to the original bill, and a cross-bill impeaching the title of the plaintiff and the proceedings in the original suit.’ See also, Mettert's Adm’r v. Hagan, 18 Gratt. 231, 234; Cralle and Others v. Meem & Others, 8 Gratt. 496, 531.
      See generally, monographic note on “Answers” appended to Tate v. Vance, 27 Gratt. 571.
    
   JOYNRS, J.,

delivered the opinion of the court:

The court is of opinion, that the said Circuit Court erred in rendering a decree in favor of the appellee Hagan, without first causing issues to be tried by a jury as hereinafter directed. Therefore it is decreed and ordered, that the said decree be reversed and annulled, and that the appellee Hagan pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here.

And this court proceeding to pronounce such decree as the said Circuit Court ought to have pronounced, it is further decreed and ordered, that a jury be empanelled at the bar of 'the said Circuit Court, on the chancery side thereof, to try the following issues:

1. Whether the deed in the proceedings mentioned from George W. Mettert to John Hagan was or was not obtained by fraud.

2. .Whether, in case the said deed was so obtained by fraud, the same was subsequently confirmed by the said Mettert by his answer to the bill of Mrs. Kyle, or otherwise, *the said Mettert intending thereby to ratify and give effect to the said deed, being fully aware of his right to avoid the same, and being competent to bind himself, and free from all coercion, restraint or undue influence.

3. In case the said deed was so obtained by fraud, and was not so subsequently confirmed, what was the value in money of the consideration, if any, paid or delivered by the said Hagan to the said Mettert for the interest of said Mettert conveyed by said deed. Upon the trial of which issues the said Hagan shall be entitled to open and conclude.

And the court is of opinion, that if it shall be ascertained that the said deed was not obtained by fraud; or, having been obtained by fraud, was subsequently confirmed as aforesaid, then the same should be held valid without regard to the value of the consideration paid or delivered therefor.

And the court is further of opinion, that though, according to the strict rules of pleading, the said deed could not be annulled and set aside without a bill or cross-bill filed for that purpose by said Mettert’s administrator, the answer of said Mettert’s administrator may, for that purpose, be treated as a cross-bill, so as to enable the court to do-complete justice in this cause; and that if it shall be ascertained that the said deed was obtained by fraud, and was not subsequently confirmed as aforesaid, the same should be set aside and annulled, upon the payment to the said Hagan of the value' of the consideration paid or delivered therefor by him, ' with' interest thereon, for the re-payment whereof the said deed shoulij be held as a security.

And the cause is remanded to the said Circuit Court for further proceedings to be had therein in conformity with the forego-! ing opinion and decree. Which is ordered to be certified, &c.

Decree reversed.  