
    Gibson v. Randolph.
    
    Friday, June 7th, 1811.
    i. Court'of Appeals — Jurisdiction—Interlocutory Decree. — The court of appeals has no jurisdiction to grant appeals from interlocutory decrees,
    a. Deeds — Recordation.—if, before the time limited by law for recording a deed has expired, a bill tie filed to impugn it as fraudulent, tile court cannot afterwards declare it void, as against tlie complainant, on the ground of its not having been duly recorded.
    The chancellor for the Richmond district having- pronounced in this case an interlocutory decree, on the 28th of February, 1811, a petition for the allowance of an appeal was presented here, but overruled on the ground of want of jurisdiction in this court to grant appeals from any but final decrees. Application was afterwards made to the chancellor, and the appeal allowed by him.
    *The object of the suit (which was originally instituted by William Randolph, a creditor of Thomas Gibson, against Thomas and Robert Gibsons, in the county court of Cumberland, and removed by certio-rari to the superior court of chancery) was to set aside as fraudulent, two deeds from Thomas to Robert Gibson, both dated October 26th, 1803 ; by one of which a tract of land, and by the other certain personal property, was conveyed. The bill was filed in February, 1804.
    The answer of Robert Gibson (sworn to in open court, June, 1804) denied all fraud; averring the deeds to be founded on full and valuable considerations, bona fide paid ; and mentioning that the deed for the land was then lodged in the clerk’s office of Prince Edward district court. That of Thomas Gibson (sworn to, before a justice of peace, in October, 1809) plainly and positively admitted the fraud, as well as the debt charged in the bill.
    Copies of the deeds are inserted in the transcript of the record, without any certificate of their being recorded.
    Several depositions were also filed and copied, but do not appear to have been considered by the chancellor; the transcript stating that “the cause was heard on the bill, answers and exhibits, ‘and was argued by counsel ; on consideration whereof,” the court, without deciding, at this time, upon the validity of the deed for the personal estate, and being of opinion that the other deed is void as to creditors, “as it was not recorded in the time prescribed by the act of assembly,” adjudged and decreed the deed, last mentioned, to be null and void ; that the defendant Thomas pay to the plaintiff the amount of his claim, and that the other defendant, Robert Gibson, render an account, before a commissioner, of the sums of money paid to or for the defendant Thomas, on account of the property contained in the said deeds, or on any other account.
    *The record in this appeal being ■ brought up, the’ cause was heard by this court on Thursday, the 27th of June, in pursuance of the act, “to amend the several laws concerning the court of appeals,” passed February 13th, 1811. 
    
    Botts, for the appellant.
    The decree invalidating the deed on the supposition that it had not been recorded, went out of the facts put in issue; the only point in controversy being whether the deeds were fraudulent. It did not appear whether, in fact, the deed for the land was recorded in due time, or not. And as the bill was filed within eight months after it was executed, the law of recording deeds could not be brought any way to act upon the case.
    Samuel Taylor, for the appellee,
    relied on the decision in Moore’s Executor v. The Auditor, 3 H. & M. 232, as being in point to show that the court may take notice of a deed’s not being recorded, although the fact be not put in issue. If Robert Gibson has a recorded deed, his interest will not be affected by the decree now in question.
    Botts, in reply.
    A case determining a deed void upon an objection not put in issue, could hardly have passed the ordeal of this court, but through inadvertence ; and, if it did, it is not law. The chancellor having declared the deed not to have been recorded ; if this court affirm his decree, it will be binding, however plain the fact may be to the contrary.
    
      
       For monographic note on Receivers, sea end of casa.
    
    
      
       Courtof Appeals — Jurisdiction.— See monographic note on “Appeal and Error” appended to Hill v. Salem, etc,, Turnpike Co., 1 Rob. 263.
    
    
      
       Interlocutory Decrees. — See monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
    
      
       Deeds. — See monographic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 564.
      Fraud — Onus Probandi. — A plaintiff who alleges fraud must clearly and distinctly prove the fraud. alleged in his bill. The onus probandi is on him, and if the fraud is not strictly and clearly proved as it is alleged, relief cannot be granted, although the party against whom relief is sought may not have been perfectly clear in his dealings. Fraud will not be carried by way of relief beyond.the manner in which it is proved to the satisfaction of the court. Harden v. Wagner, 22 W. Va. 366, citing principal case.
    
    
      
       Acts of 1810, c. 5, s. 3.
    
   It being represented that a speedy decision of this case was very important; both parties claiming to be in possession of the land, which was taken in execution by an elegit; (there being no appeal from so much of the decree as was against Thomas Gibson ;) the judges (Roane, Cabell and Coalter) immediately retired to consult; *and, “• after some time, returning into court, Judge Roane reported the following opinion :

“The court is of opinion that the said decree is erroneous in declaring that the deed of the 26th day of October, 1803, is void in consequence of its not being duly recorded according to the provision of the act in such case made and provided ; both because the appellee appears, by his bill, to have had that notice of the existence of the deed aforesaid which it was the object of the act- to afford, and because the construction upon this subject must have reference to the time of the exhibition of the bill, at which time, in the present case, the limitation provided by the said act had not expired. On this ground, the court is of opinion to reverse the said decree, and remand the cause for further proceedings, both as to the validity of the deed of the personal estate, and as to that of the said deed of the 26th day of October, 1803, on grounds other than that on which the said decree was founded, neither of which last-mentioned grounds were within the contemplation of the decree in the present case, nor, as to them, was the testimony taken in the cause read or considered ; and although, if that testimony were now fully matured, this court might probably enter such decree thereupon as the said court of chancery ought to have rendered, yet it would be improper so to do, as the said decree was made in anticipation of the final trial upon the merits, and confined to the single point before mentioned.”

Decree reversed, and cause remanded, to be finally proceeded in, pursuant to the principles above stated.  