
    *Summers v. Darne & als.
    March Term, 1879,
    "Richmond.
    I. Trust I)«‘ed — Conveyance — One in Equity. — In January, 1856, N. .sold and conveyed to J. W. and R. 11. Darne a tract of land, and at the same time they conveyed the land to trustees to .secure the purchase-money. In 1866 the trustees and R. II. Darne and wife released and conveyed the land to J. W. Darne. This deed bears date August 1st, 1866, and was acknowledged before justices on the 2d of November, 1866, and was received at the clerk’s office for record on the 14th of tize same month. By deed bearing date on 31st of October, 1866, J. "W. Darne and wife conveyed the land to a trustee to secure a debt to N. This deed was acknowledged by J. W. Darne on the 2d of November, and by his wife on the 7th, and was received at the clerk’s office on the 14th of November. In 1860 S. recovered judgments against J. W. Darne, which were docketed in 1865. On a suit in equity by S. to subject the said land to satisfy his judgments- — Held: That though the deeds bear different dates, yet as they were acknowledged on the .same day and received for record on the same day, it is fairly to be presumed that the two deeds were delivered on the same day, and that they were intended to take effect at the same time.
    II. The second deed of trust docs not show that the debt secured thereby is the same as that1 secured by the first deed, but it is proved by parol evidence that all of the principal money secured by the first deed and a considerable amount of interest remained unpaid in 1866, and R. H. Darne being of opinion that he could not pay his part of it, at the request of said R. H. and J. W. Darne, N. agreed that the whole land might be conveyed to J. W. and he should give his notes for the amount, principal and interest, to be paid in two and three years, and give a deed of trust to secure them; and to carry out this arrangement the deed from the trustees and R. H. Darne and wife to J. W. Dame and his deed of > trust to secure the debt was executed — Held :
    See Nutt v. Summers, 78 Va. 164, sequel to principal case.
    1. Deeds — Enquiry into Consideration. —Parol evidence is competent to prove the consideration on which these ueeds were mede.
    *2. Mortgages — Debt—Novation.—The facts stated do not constitute a novation of the debt; but it is still a debt due for the purchase-money of the land, and has priority over the judgments.
    III. Practice — Objectionable Questions — - How Taken Advantage of.- — Though an exception is taken and entered at the time, that a question asked of a witness is leading, the ex-ceptant should bring it to the attention of the court and obtain an order for the suppression of the objectionable testimony; and if he fails to do this, the exception will not be regarded in the appellate court.
    IV. The county court having made a decree in the cause, holding that the second deed released the first deed of trust, and giving priority to the judgments, N. appealed to the circuit court, and that court affirmed the decree of the county court. At the same term N. filed his petition for a rehearing of the decree of the county court, which was allowed. About the same time the parol evidence was filed — Held :
    X. If the deeds alone are to be considered it was a proper case for the rehearing of the decree.
    2. Interlocutory Decree — New Evidence. —There is no rule of law which precludes the party from taking new evidence after an interlocutory decree, even before a rehearing is obtained. The introduction of such evidence depends on the sound discretion of the court, and all the circumstances of the particular case. Rooking to this evidence certainly the rehearing was proper.
    V. Same — Decision in Present Case. — The decree of the county court, after declaring that the judgment liens have priority over the deed of trust, directs the sale of the land at public auction or at private sale, on credits stated, and that the commissioners should report their proceedings; and that a commissioner should ascertain and report the several liens on the land and their priorities. This is an interlocutory decree.
    VI. Statute — Application to Pending Causes. —-Under the act, Code of 1873, ch. 178, § 25, so soon as the appeal from the decree of the county court was allowed and perfected, the cause was at once transferred to the circuit court, and became a pending cause in that court. It was therefore not affected by the act of March 3, 1873, which applied only to causes then pending in the county court.
    VII. Decree — Power of Court. — The petition for a rehearing of the decree of the county court having been presented and allowed to be filed at the same term at which that decree was affirmed by the circuit *court, that court had complete control during that term of its decree, and might modify or review it at its pleasure.
    VIII. Same — Construction.—Though the petition was for a rehearing of the decree of the’ county court, and the order for a rehearing was confined to that decree, the circuit court acted upon the idea that the whole case was before it, in the exercise of its original jurisdiction, and that it had the same control of all the decrees and proceedings as the county court would have had if the cause had remained in that court. The circuit judge, in giving leave to file the petition, must necessarily have intended to suspend the operation of the decree affirming the decision of the county court, and the petition and order was intended to apply to both decrees.
    This was a creditor’s bill in the county court of Loudoun, brought in June, 1870, by Richard H. Summers against James W. Darne and Emily F. Darne, his wife, William ■ D. Nutt and others, to subject two tracts of land once held by James W. Darne to satisfy four judgments recovered by Summers against James W. Darne in 1861, and docketed in 1865. The bill, after setting out the judgments, alleged that at or after the time of the rendition of the judgments, James W. Darne wa's seized of a tract of 213 acres and 29 poles in the county of Loudoun, which, by two deeds, dated respectively on the 31st of October, 1866, and the 13th of' January, 1869, was conveyed by said Darne and wife to Frederick P. Ma-guire, in trust for the benefit of William D. Nutt; also a tract of 255 acres, two roods, which said Darne and wife, by deed dated the 22d of December, 1866, conveyed to said Maguire in trust to secure to said Nutt the payment of $1,800, due the 22d of December, 1871 and 1873, and which tract by another deed, dated the 27th of January, 1869, Darne and wife conveyed to George W. F. Plummer in trust for the benefit of Mrs. S. Darne. That on the 23d of May, 1870, Maguire, under the two deeds of October, 1866, and January, 1869, sold in the city of Washington *the tract of 213 acres and 29 poles, and it was purchased by William D. Nutt at the price of $2,800. The plaintiff objected to this sale on various • grounds; he prayed that an enquiry be made as to what lands .Darne has had at any time since the first day of the June term, 1861, of the county court of Loudoun, at which said judgments were rendered, and also what were the liens thereon and their priorities; and that the court would' decree that the purchase-money of $2,800, with interest thereon, be applied to pay said liens is sufficient for the purpose; and if not sufficient, that the sale should be set aside, and the said land and any other realty of said Darne subject to said liens be sold, and the proceeds applied to the payment of the said’ liens, and for general relief.
    At the October term, 1870, of the court, the cause came on to be heard upon the bill taken for confessed as to all the defendants, when the court made a decree directing a commissioner to ascertain and report what real estate James W. Darne is now or'has been seized or possessed of on or since the first day of the terms at which the judgments of complainant, were rendered, and all the liens thereon and their priorities, and the value and annual value of the said realty, with any other matter, &c.
    _ On the 14th of February, 1871, Commissioner F. M. Plenderson returned his report. He reported the liens upon the real estate by judgments at $3,018.49, and Nutt’s second deed of trust at $808.50; the deed of trust of October 31, 1866, as released, and therefore not a lien.
    The cause came on again to be heard at the February term of the court upon the papers formerly read and the report of the commissioner, when the court recommitted the report with instructions to the commissioner to enquire and report for what price William D. Nutt bought the tract of 213-acres sold to him by the trustee, Maguire, *and also what interest James W. Dame has in the tract of 225 acres mentioned in the bill, its value and annual value, with any other matters, &c.
    At the March term of the court Wm. D. Nutt filed his answer in the cause. He admitted the plaintiff’s judgments, but denied they were a lien on the land superior to that of respondent. He states that in January, 1856, he sold to James W. Darne and Richard H. Darne a tract of land in Loudoun county containing 213 acres and 29 perches for $400 cash, and the residue of the purchase-money, $1,900, to be paid in four equal annual instal-ments, the interest thereon to be paid semiannually and for the security thereof the said parties executed a deed of trust to Wm. B. Randolph and Anthony McLean; the deed and deed of trust were both delivered at the same time, and both entered of record at the same date. The' purchasers failed to pay the deferred payments or the interest accruing thereupon, and Richard H. Darne being of opinion that he would be unable to comply with his contract, applied to respondent to be relieved. James W. Darne, however, thought that if the time of payment was extended he would be able to meet the payment for said land. Accordingly, at their earnest request, respondent consented that if they would pay him $242 — his debt and interest amounting on the 1st of September, 1866, to $2,242 — and pay him the residue in gold or its equivalent in currency, in two and three years, interest thereon _ half yearly, he would agree to their proposition. To effect this arrangement it was then agreed, in order to divest any title that Richard H. Darne might have in the land, that Randolph and McLean, the trustees in the deed from James W. and Richard H. Darne should unite in a deed to James W. Darne for the said land; and that James W. Darne should then execute his bonds with another deed of trust to secure them in lieu- of the original bonds for the purchase by Richard and *James W. Darne. And accordingly the deeds were prepared and executed at the same time, and admitted to record on the same day; and copies are filed with the answer. And he insists that by this last deed James W. Darne secures to him the same debt secured in the original deed, and agrees to pay the same in gold, or its equivalent, that being the currency in which the original debt was contracted.
    The defendant insists that the proceeding to sell under the deed of trust was regular, and the sale was fairly conducted; and that as the highest bidder at the sale he became the purchaser, and the price paid for the land did not pay his debt by the sum of $197.45.
    As to the tract of 255 acres and two roods, he sold it to James W. Darne, and that there is now due to him the sum of $1,800; that the deed therefor and the deed of trust to secure its payment were executed at the same time, and admitted to record at the same time.
    In July, 1871, Commissioner Henderson returned his second report. He states the sale by Nutt to James W. and Richard H. Darne in January, 1856; that after sundry payments the amount due thereon on the 31st of October, 1866, was $2,242; that Richard H. Darne wished to be relieved, and Wm. D. Nutt did release him on certain terms, as follows: James W. Darne was to pay $242, which was done, and the amount reduced to $2,000, payable in gold or its premium at maturity, provided the same should be paid in currency. The sale by the trustee was made June 20th, J870, and the purchaser was Wm. D. Nutt.
    The commissioner then makes a statement of the debt secured by the deed of 1866 and the expenses of sale, making $2,894.45; and after deducting the purchase-money, $2,700, shows a deficiency of $194 45. He *also makes a statement of the original debt due October 31st, 1866, $2,242, and makes the excess of the notes secured by the last deed over the debt due $191.54. He refers to the court the question whether there has been a novation of the original contract. He states that the tract of 255 acres is assessed at $2,555, and that the rents of the lands will not pay the debts in five years.
    The commissioner returns with his report the deeds. The deed of trust from James W. and Richard H. Darne to Randolph and McLean to secure the purchase-money of the land to Nutt was dated the 1st of January, 1856; and was admitted to record on the 5th of January. The deed from Randolph and McLean and Richard H. Darne and wife to James W. Darne is dated the 1st of August. 1866. It is acknowledged before justices of the peace on the 2d of November, 1866, and admitted to record on the 14th of November. This deed refers to the deed of trust from J. W. and R. H. Darne, and recites that the purposes of said deed have been satisfied, and that R. H. Darne has, for a valuable consideration, sold all his interest in the land to J. W. Darne, and directs that the whole shall be released and conveyed to him.
    The deed from James W. oDarne and wife is dated the 31st October, Í866, is acknowledged before justices on the 2d and 7th of November, and admitted to record on the 14th of November, the same day that the deed from Randolph, &c., was admitted to record. The debt secured is evidenced by two notes payable in two and three years with interest.
    The cause came on again to be heard on the 19th of March, 1872, when the court held that the deed from Randolph, &c., to James W. Darne, dated August 1st and acknowledged the 2d of November, 1866, fully released and extinguished the lien of the deed of trust *from James W. Darne, &c., to said Randolph and McLean bearing date the 1st of January, 1856, and was a conveyance in fee of the tract of 213 acres and twenty-nine poles to James W. Darne; and that said deed of August 1st, 1866, was not simultaneous with but prior to the deed of trust from James W. Darne and wife to T. B. Maguire, trustee, bearing date on the 3ist day of October, 1866; and that the judgments of the plaintiff and the other judgments existing at the time when the said deed of trust to Maguire was recorded, are liens on said 213 acres and 29 poles prior to the lien of the said deed of trust to Maguire of October 31st, 1866.
    And it was decreed that the sale by Maguire be set aside and a sale be made upon the credits as prescribed in the decree. And it was further ordered that T. M. Henderson, or some other commissioner of the court, do ascertain and report what liens there are on the tract of 255 acres, and their priorities.
    From this decree Nutt appealed to the circuit court of Loudoun.
    On the 13th of October, 1873, two depositions, which had been taken by the defendant Nutt on the 7th of the same month, were received by the clerk of the circuit court and filed in the papers of the cause. These were the depositions of James W. and Richard H. Darne. James W. Darne was asked by Nutt’s counsel:
    2d question. Did you, in the year 1866, agree to take upon yourself the whole liability for said purchase, and was Richard H. Darne agreed to be released therefrom by W. D. Nutt, and state the circumstances and the mode by which said release of Richard from the purchase was effected? (Question excepted to by counsel for plaintiff.)
    Answer. I did agree to take upon myself the liability of the whole of said purchase, the said Richard H. Darne feeling himself unable to comply with said purchase, and *the deed for the said tract of land was made out and signed by Richard a'nd his wife, and the trustee in the deed of trust.
    . Question 3. Was the said deed of trust ever delivered to you?
    Answer. It never was delivered to me, and I never have seen it. (Excepted to by plaintiff’s counsel.)
    Question 4. Was it, or not, understood that the deed aforesaid to you, by which Richard was released from his purchase, was to have no effect until the deed of trust was given, and was not that the reason why the deed was not delivered? (Excepted to by plaintiff’s counsel.)
    Answer. It was so understood and intended; that was the reason the deed was not delivered.
    And in answer to another question, witness stated that he owed to Nutt the original purchase-money and more, and it was the same money contained in the deed of trust to Maguire.
    Richard Darne stated that he did purchase the land in conjunction with his brother in the year 1856,. and in 1866 he became dissatisfied, and did not think he could get through with the debt, and his brother James took the debt upon himself, provided William D. Nutt would release witness from the place and debt; which was done.
    .The justice who took these depositions, in .his certificate stated that the counsel for the plaintiff, before the examination of the witnesses was entered upon, excepted to the taking of the depositions, because the case had been already submitted, heard and decided in the county court of Loudoun, and was then before the circuit court upon an appeal to be heard upon the record from the court below, and for all other causes.
    At the October term, 1873, of the circuit cout, the court affirmed the decree of the county court of March, 1872, with costs.
    At 'the same term of the court James W. Darne filed *his answer in the cause, in which he sustained 'the defendant Nutt in his account of the transaction of 1866; and also at the same term of the court leave was given the defendant Nutt to file a petition for a rehearing in this cause. In his petition he refers ' to the decree of March, 1872, of the county court, and prays that it may be reheard; and he proceeds to state the facts as to his sale and the two deeds of trust as he had before stated them in his answer.
    On the 4th of May, 1875, the cause came on again to be heard upon the papers formerly read, and the petition for a rehearing of the decree entered by the county court of Lou-doun at its March term, 1872, upon the depositions of the witnesses and the answer of the defendant Darne, and the court being of opinion that the said decree should be reheard, it was decreed that the cause be recommitted to Commissioner Henderson, with instructions to. enquire and state the liens, with their priorities, after considering the evidence now in the record, or which the parties may hereafter adduce. And thereupon the plaintiff, Summers, applied to this court for an appeal; which was allowed.
    
      John M. Orr, for the appellant.
    
      H. W. Thomas and Wm. W. Crump, for the appellees.
    
      
      Equity — Conveyance — Trust Deed. — On the question of where deeds of conveyance and deeds of trust executed on the same day will be considered one in equity, see Iiurst v. Dulaney, 87 Va. 444; Straus v. Bodeker, 86 Va. 543; Roush v. Miller, 39 W. Va. 638.
    
    
      
      Deeds — Enquiry into Consideration.- — In Click v. Green, 77 Va. 838, the principal case is cited as authority for the rule that the consideration named in a deed may be looked into.
    
    
      
      Mortguges — Discharge —■ Novation. — Bor discussion of the discharge of mortgages and novation, see Stimpson v. Bishop, 82 Va. 190; Coles v. Withers, 33 Gratt. 186 and note.
      
      Equity — Judgment Creditor — Not a Purchase —The principal case is cited in Sinclair v. Sinclair, 79 Va. 42, and in Cowardin v. Anderson, 78 Va. 88, as authority for the proposition that a judgment creditor is in no just sense treated as a purchaser - and has no equity whatever besides what belongs to the debtor.
      Depositions Taken after interlocutory Decree — Admissibility.—In regard to the reading of depositions taken after there has been an interlocutory decree in a chancery cause, see Richardson v. Dublé, 33 Gratt. 730 and note, where the principal case is discussed and distinguished. See also Rawl-ings v. Rawlings, 75 Va. 91.
    
   Staples, J.,

delivered the opinion of the court.

This court has decided in numerous cases that where no statutory enactment intervenes, the judgment creditor can acquire no better right to his debtor’s estate than the latter himself has. Tire creditor takes the property or applies it ‘ to the satisfaction of his lien in subordination to all the equities which exist at the time in favor of third persons, and a court of chancery will *limit the lien of the judgment to the actual interest the debtor has. The cred-

itor is in no just sense treated as a purchaser. He has no equity whatever beyond what justly belongs to the debtor. See Floyd v. Harding and Borst v. Nolle, reported in 28 Gratt. 401, 423.

When, therefore, land is conveyed and the purchaser at the same time gives back a mortgage or other incumbrance to secure the purchase-money, he does not thereby acquire any such seisin or interest as will entitle his wife to dower, or his creditor to subject the land to his debts discharged of the mortgage. In such cases the deed and mortgage are regarded as parts of the same contract, and constitute but a single transaction, investing the purchaser with seisin for a transitory instant only. In the same manner a deed of de-feasance forms with the principal deed but one agreement, although it be by a separate and distinct instrument. Gilliam v. Moore, 4 Leigh, 32; Wilson v. Davidson, 2 Rob. R. 384, 398. If both instruments bear date the same day, it will be presumed they were executed at the same time in absence of proof to the contrary. And even though the mortgage'bears date subsequent to the date of the deed of conveyance, if it appears they were acknowledged on the same day and recorded at the same time, it may be inferred they were executed together, and intended to take effect at the same time. Pendleton and -wife v. Pomeroy, 4 Allen R. 570. If at the time of the sale and purchase, the purchaser on receiving a conveyance from the vendor, is at the same time to execute a mortgage of the property to secure the payment of the purchase-money, and the giving the mortgage is delayed owing to a difference between the parties as to the provisions to be inserted therein, but is subsequently executed in fulfilment of the original contract, the same principle *applies, and the lien of the mortgage . will take precedence of a mere judgment lien upon the property. Wheatley's heirs v. Calhoun, 13 Leigh, 264; 1 Scribner on Dower, and cases there cited.

The principle upon which this doctrine proceeds is that a court of equity looks upon that as done which ought to be done. That court considers all agreements as performed which are made for a valuable consideration in favor of those entitled to insist upon the performance, so that neither party will suffer prejudice or derive any undue advantage from a non-compliance with the contract.

A different rule would no doubt apply to the case of a bona fide purchaser for a valuable consideration acquiring title to the property before the execution of the mortgage and in ignorance of the arrangement. But with respect to creditors they stand on no higher ground than the debtor, and must take the estate as he holds it.

The deed of release executed by the appel-lees, W. D. Nutt and the trustees, bears date the 1st of August, 1866, and the deed of trust, given by James W. Darne, for the benefit of W. D. Nutt, bears date 31st of October following. So that it would seem there was an interval of nearly three months between the execution of the two deeds. The appellant claims that in this interval James W. Darne was invested with both the legal and equitable title, and the lien of his appellant’s judgment attached upon the land to the exclusion of the trust deed.

But if we examine the certificates of the justices of the peace, and of the notaries public appended to the deed of release, we find that deed was not acknowledged by either of the parties until the Sd November, 1866, nor admitted to record until the 14th of November.

*Rooking at the deed of trust of the 31st of October we find that deed was acknowledged by the parties on the second of November, and admitted to record on the same day as the deed of release. It is therefore fairly to be presumed that the two deeds were delivered on the same day, and that they were intended to take effect at the same time.

It was so held in the Massachusetts case already referred to, and in the absence of proof to the contrary, such a presumption is reasonable and just. But this is not all, the recitals in the deed show their connection with each other. The deed of release refers to the deed of trust given by Richard H. Darne and James W. Darne on the first day of January, 1856, to secure the payment of the purchase-money for the land sold them by the appellee, and the deed of trust of the 31st of October, 1866, refers to the deed of conveyance executed by the appellee to Richard H. and James W. Darne the 1st day of January, 1856. It is impossible to resist the conclusion that these four deeds are connected, and constitute parts of the same transaction. The only difficulty in the way is there is nothing on the face of the deeds to show that the debt secured by the second deed of trust is the same debt provided for in the deed of trust of 1856. But this is fully supplied by the parol testimony. It appears from the evidence that Richard H. and James W. Darne purchased the land of the appellee in 1856, and received a conveyance therefor, and at the same time executed a deed of trust to secure the unpaid purchase-money. Considerable time elapsed and no part of the debt was paid. It became apparent that Richard H. Darne could not comply with his part of the contract, and in 1866 it was agreed that James W. Darne should become the sole purchaser; that a deed of release of the trust deed should be executed to him, and ^simultaneously therewith he should execute a trust deed to secure the purchase-money still due the appellee. Accordingly the deed of release of the tst of August, 1866, was prepared and signed. Why the trust deed was not prepared atthesame time is not explained; but although the trust deed was not signed until the 31st day of October, 1866, as has been seen, both deeds were acknowledged on the same day, and the parol testimony shows that the deed of release was in fact not acknowledged and delivered until the deed of trust was also acknowledged and delivered. It is impossible on reading this record to entertain a doubt that this is a true version of the transaction, precisely what the parties intended, and what was actually done by them.

The learned counsel has argued that parol testimony is inadmissible to contradict or vary the recitals in the deeds, or to show that the deed of August 1st, 1866, was not delivered on the day of its date. No rule is perhaps now more firmly established than that the parties are not concluded by the date of the deed or the recital of the consideration therein. It is competent always to show by any relevant evidence that the delivery was ] in fact on a day different from the date, and i to show the real nature and character of the | consideration. 15 John. R. 463; Mabery v. Brien, 15 Peters R. 31.

If, as contended by the counsel, the questions propounded to the witness were leading, \ it was incumbent upon the appellant not merely to except at the time, but to bring the matter to the attention of the court below and obtain an order for the suppression of the objectionable answers. This not having been done, this court is precluded from considering the exceptions to the interrogatories for the alleged reason that they are leading. But the objection mainly relied on is that the testimony comes too late; it was taken after *the decree settling the rights of the parties, and no sufficient reason or excuse is assigned for not having produced it earlier.

Whether a rehearing shall or shall not be granted in any case is a matter within the sound discretion of the court. Tf the application is based solely on the ground of after-discovered evidence, the party must of course bring himself within the rule which requires he should show due diligence.

A rehearing may, however, be granted on other grounds. Tt may be granted on the merits of the case as they stood at the former hearing, if the chancellor has reason to doubt (the correctness of his former opinion. The i practice of granting rehearings where justice ! has not been done is favored by the courts. It tends to lessen litigation and the expense of appeals to this court. 3 Rob. Prac. 389. In the present case it does not distinctly appear whether the depositions were or were not brought into the cause before the petition for a rehearing was filed. It does not matter, , because if we exclude the depositions from ; our consideration, and look alone to the deeds, it was plainly a case proper for a rehearing upon the merits. If, on the other hand, we look to the parol evidence, there1 cannot be a doubt that the circuit judge wisely exercised his discretion in granting a rehearing. There is no rule of practice or of law which precludes the party from taking new evidence upon a question of fact passed upon by an interlocutory decree, even before a rehearing is obtained.

The introduction of such evidence depends on the sound discretion of the court and all the circumstances of the particular case. Dunbar’s ex’or v. Wood’s ex’or, 10 Leigh, 628; Moore v. Hilton, 12 Leigh, 1.

From what has been said, it is manifest this discretion has been wisely exercised in this particular case.

It is further insisted that the dealings between the *appellee and the purchasers of the land have resulted in a novation of the debt and an entire extinguishment of the lien given to secure its payment. The unpaid purchase-money secured by the first deed of trust amounted to $1,900, payable in three instalments, with interest thereon, payable semi-annually.

By the new arrangement, Richard H. Darne was released, and James W. Darne executed his two bonds to the appellee,' secured by the trust deed bearing date 1st September, 1866, each, for the sum of $1,000 in gold coin, one payable in two and the other in three years, bearing semi-annual interest, and another note for $242, with interest from date. The parties, it seems, considered the original debt as payable in gold, and in 1866, when the new arrangement was made, the Federal currency was not only greatly depreciated, but subject to constant fluctuations. They, therefore, stipulated that as the debt was originally a specie debt, it should retain that character throughout. The only substantial change made was in the release of one of the parties and in the agreement to give still further indulgence. It is easy to see, however, that it is the same debt due for the purchase of the land, never paid or extinguished. And it has been so treated throughout.

In Knisely v. Williams, 3 Gratt. 265, the vendor took a bond for the purchase-money. He afterwards agreed to take from the vend- or an order on a third person,. payable at a distant day, for the amount of the bond. The order was given and the bond surrendered; but when the order was presented the drawee refused to accept it. It was held that the new arrangement did not affect the lien for the purchase-money, and the vendor was at liberty to resort to it and enforce it upon the failure to collect the order.

In Yancy v. Mauck, 15 Gratt. 300, after the purchaser *had given his bonds for the purchase-money, a new arrangement was made, by which those bonds were surrendered and other bonds were given with new parties to third persons; and it was held that this change of the contract did not affect the lien for the purchase-money. Judge AleEN, in delivering the opinion of the court, quotes, with approbation, what is said in Watts v. Kinney, 3 Leigh, 272, 295, on the same subject: That a court of equity looks to substance, not to form; it looks to the debt which is to be paid, not to the hand which may happen to hold it; that the fund charged with its payment (the land here) shall be so applied whosoever may be the person entitled, and it considers a debt as never discharged until it is discharged by payment to the proper person and by the proper person. These authorities are decisive of the question.

It is argued that the deed of trust of October, 1866, secures to the appellee advantages to which he is not justly entitled under the original contract. By the new arrangement it is said the interest is compounded to make the accrued interest an interest-bearhig fund, and this new interest-bearing fund is further augmented by an enormous gold premium, the effect of all which is to give to the appel-lee $2,780 in currency, against a principal of $1,900 in currency, and this large excess is interposed against the appellant after his judgment lien had attached.

We do not deem it necessary to enquire whether or not this point is well taken; the question does not property arise at this stage of the controversy. This is an appeal from a decree granting a rehearing, and all we have to do is to determine whether the rehearing is proper. When the case goes back to the lower court for further proceedings that court will then ascertain the *amount justly due the appellee. If the deed of trust includes more than he is entitled to as against the appellant, the deed can be reformed in that particular. In the absence of fraud, and nothing of the kind is pretended here, the deed of trust will be held good for whatever the appellee may justly claim.

Before leaving this branch of the case it is necessary to enquire whether the decree of which the rehearing was allowed is an interlocutory or final decree. The learned counsel for the appellant maintains it is final. We are of. opinion this is an entire misconstruction of the decree. After declaring that the judgment liens have priority over the trust deed, the decree directs the sale made by the trustee be set aside, and the land sold again at public auction, or at private sale, as the commissioners might deem best, upon a credit of one, two, three and four years, and the commissioners are directed to report their proceedings to the court. It was further provided that one of the commissioners of the court shall ascertain and report the several liens on the land, and their priorities. That a decree of this character is interlocutory and not final is settled by numerous decisions of this and other courts. See Cocke’s adtn’r v. Gilpin, 1 Rob. R. 20; Ambrous’ heirs v. Keller, 22 Gratt. 769, where the whole subject is fully discussed. See Craighead v. Wilson, 18 How. U. S. R. 199; Beebe v. Russell, 19 How. U. S. R. 283.

After all, perhaps, the enquiry is not very material, for if the decree is to be regarded as final, the petition for a rehearing may be treated as a bill of review, and, such proceedings had thereunder as are appropriate to that mode of proceeding. Several other points are made in the petition for an appeal, but what has been said disposes of the most material.

Thus far the case has been considered on its merits. *Another question, however, arises, and that is whether the appellee is not barred of his remedy by the previous decrees and proceedings in the cause.

It is insisted that the circuit court having affirmed the decree of the county court, the decree of affirmance is conclusive until reversed by this court. In such a case, it is said, a petition for a rehearing or a bill of review would not lie in the circuit court, the only remedy being an appeal. In support of this view the act of March 3d, 1873, is relied on.

It is sufficient to say that act has not the slightest application to the case. It applies only to causes pending in the county court at the time of its passage, and provides for their removal into the circuit court, where they are to be proceeded in as if they had been originally commenced in that court. The appeal was allowed in the case before us in April, .1872, and was perfected long before the act of March, 1873, was passed. See Code 1873, p. 1029.

The twenty-fifth section of chapter 178, Code of 1873, provides that when any judgment, decree or order of a county court is reversed or affirmed, the cause shall be retained in the circuit court and there proceeded in, unless by consent of parties, or for good cause shown the appellate court otherwise directs. Under the operation of this statute, so soon as the appeal was allowed and perfected, the cause was at once transferred to _ the circuit, court, j and became a pending cause in that i court. It was, therefore, not affected by the act of March 3, 1873, which, as has been seen, applied only to causes pending in the county court.

The county court, by its decree of March, 1872, held that the lien of the appellee under his deed of trust was subordinate to the judgment lien. The appellee here appealed to the circuit court, and that court, at the October *term of 1873, affirmed the decree of the county court; but during the same term the appellee applied for and obtained leave to file his petition for a rehearing. The question arises whether, after an affirmance of a decree of a county court, it is competent for the circuit court to grant a rehearing. Whatever difficulty there may he in the exercise of such a power after the term is ended, there certainly can be none when the application is made during the same term the decree of affirmance is entered.

Every court, whether appellate or original, has during the term complete control of its decrees arid proceedings, and may review or modify them at its pleasure. This court, in a proper case, never fails to exercise the power. The effect of. granting leave to file the petition for a rehearing is to suspend the decree of affirmance, and to reserve to the court complete control of the case. If, upon the rehearing, the decree of the county court is reversed, the cause proceed^ in the circuit court precisely as if the suit had been originally brought in that court. It is very true that in this case the application was to rehear, not the decree of affirmance, but the decree from which the appeal was taken, and the order for a rehearing is confined to the latter decree.

The circuit court no doubt acted upon the idea that the whole case was before it, in the exercise of its original jurisdiction, and that it had the same conlrol of all the decrees and proceedings as the county court would have had if the cause had remained in that court. The circuit judge in giving leave to file the petition must necessarily have intended to SUSpen(j operation of the decree affirming thp Hprisinn nf n the decision of the county court. It can hardly be supposed that he would be guilty of the inconsistency of granting a rehearing of the decree appealed from, and at the same time leaving the decree of affirmance in full force and effect.

*Every consideration of justice and every rule of interpretation requires that we should construe the acts of the circuit court as they were manifestly designed, and apply the petition and the orders thereon to the whole case as it was presented in that court. So construing them, we are of opinion that there is no error in the decree of May term, 1873, and the same ought to be affirmed. A question has been made whether an appeal lies from a decree merely granting a rehearing. We have not deemed it necessary to consider that question, because the appellee made no objection on that ground, and both parties are desirous that this court shall put an end to the controversy by a decision on the merits. '

Decree affirmed. '  