1877. terpretation as will preserve this mode of proceeding July Term. according to the long established course of the courts, rather than to compel parties to await a final decree, and then incur the expense of appeals, or to lie down under interlocutory decrees grossly unjust and illegal. Kendrick & als. v. Whitney & als. My opinion, therefore, is, that the circuit judge did not err in holding that a motion under the statute is barred after five years, whatever may be the character of the decree. But while concurring with him in this view, I think there was no good reason for not treating the motion in this case as substantially a petition for a rehearing. The notice upon which that motion. was founded was signed by counsel, it was served upon all the parties claiming under the decree of May 17th, 1860, and was regularly filed in the circuit court. It accurately describes the suit in which that decree was rendered; and it specifies with sufficient minuteness all the grounds upon which appellants rely for reversing the decree. 'It contains, therefore, every feature necessary to constitute a petition for a rehearing; and if it had been so called, there would be no difficulty in so considering it. Why, then, may it not be treated as a petition? In Virginia the practice of courts of equity is marked by the greatest liberality with respect to the pleadings. Sometimes a petition for a rehearing is treated as a bill of review, and vice versa. In Laidley v. Merrifield, 7 Leigh 346, it was declared that an application of a party is not to be rejected altogether because he has given it the form and name of a bill of review, instead of a petition or a supplemental bill in the nature of a bill of review. Judge Cabell said, the court should regard its substance, and treat it accordingly as a petition or a supplemental bill in the nature of a bill of review. In Mettert's adm'r v. Hagan, 18 Gratt. 231, an answer was held sufficient for all the purposes of a cross bill. See also Sands v. Lynham, escheator, 27 Gratt. 291. These cases show the disposition of the courts of equity to regard substance rather than mere form, and so to mould the pleadings as to attain the real justice of the case. I think, therefore, the notice in this case was substantially a petition to rehear and set aside the decree of May 17th, 1860, and ought to have been so treated by the court. The parties being before the court, the grounds for the reversal being distinctly set forth, the court ought to have given the defendants in the motion an opportunity of answering, if they desired, and then to have gone on and decided the question raised as upon a petition for a rehearing. It only remains to inquire whether there is any error in the decree of May 17th, 1860, for which it is liable to be reversed. I think there is. The court plainly erred in decreeing a sale of the land before taking an account of the liens thereon, and settling the priorities of the different creditors. The necessity of such an account has been repeatedly affirmed by this court. Moran v. Brent, 25 Gratt. 104; Simmons v. Lyles, 27 Gratt. 922. But this is not all. A part of the judgment creditors, Hubbard, Gardner & Carlton, and Smith and Roberts, were permitted to come in by petition and make themselves defendants, and on the very same day a decree was entered in their favor for the sale of the land. The defendant, George H. Kendrick, ought to have been afforded an opportunity of showing any payments made, or set-offs, to which he may have been entitled as against those creditors. To that end the court ought to have referred the matter to one of its commissioners, to summon the parties, and inquire and report the amount of indebtedness properly chargeable on the land. 1877. July Term. Kendrick & als. V. Whitney &als. 1877. July Kendrick & als. V. Whitney & als. The decree of May 17th, 1860, is erroneous in Term. another respect. It appears that the appellant, George H. Kendrick, on the 12th August 1857, executed a deed of trust for the benefit of H. F. Kendrick and William Nash, his sureties, upon a bond due Kent, Paine & Kent. The bill avers that this debt had been paid and the deed discharged; but there is no proof of the fact in the record. Kent, Paine & Kent, although not expressly provided for in the deed, were, upon familiar principles of equity, entitled to the benefit of the security, and they ought to have been made parties before any decree for the sale of the land. These errors, if promptly insisted on, it is very clear were sufficient to vacate the decree of 1860. But since that time new rights may have accrued, other equities may have attached, which would render it impossible to interfere with the sale of the land without much inconvenience and injustice to parties, and even to third persons. The errors alluded to are not fundamental, but such as may have been cured or effectually waived. It may be that Kent, Paine & Kent have been paid their debt, so that they are no longer interested in the subject matter of controversy. It is not improbable, certainly not impossible, that all the creditors may have been before the court, or their claims have been satisfied, or that the land, if sold at all, was sold at its full value. The record furnishes no information upon these points, and it would be improper for this court to pass upon them finally without. giving the parties an opportunity of being heard upon them, or upon any others, bearing upon the decree of 1860, and the sale thereunder. The case must therefore be remanded to the circuit court for further proceedings in conformity with the views herein expressed, and a decree to be entered accordingly. DECREE REversed. Wytheville. SHURTZ &als. v. JOHNSON & als. July 12. Absent, Anderson and Staples, Js. I. In 1859 W conveyed to P a tract of land in York county, in trust to 1. The deed of trust leaving the place of sale to the discretion of 2. The amount of the prior lien being certain and ascertained, the 3. The deed of trust having been taken without any notice to the mac, II. When the plaintiff in equity by his bill calls for a material disclo- 1877. July Term. 1877. July Term. Shurtz & als. V. Johnson & als. on oath makes such disclosure fully and unequivocally, the answer, to the extent of such disclosure, is said to be responsive to the bill, and the statement must be taken as true, unless overcome by the satisfactory testimony of at least two opposing witnesses, or of one witness with clear corroborating circumstances. This case was argued in Richmond and decided at Wytheville. It was a suit in equity to set aside a sale of land under a deed of trust, and the conveyance to the purchaser from the trustee, and also a sale and conveyance by that purchaser to a purchaser from her. The case was heard upon the bill, the answers, and the exhibits; and the sales and conveyances were set aside and certain accounts ordered. And the trustee and the last purchaser applied to this court for an appeal; which was awarded. The case is sufficiently stated by Judge Burks in his opinion. John H. Gilmer and Grattan, for the appellants. John S. Wise and Crump, for the appellees. BURKS, J. This case presents the question as to the validity of a sale made by a trustee under a deed given to secure the payment of debts. 66 On the 17th of January, 1859, Samuel C. White by deed of that date conveyed his tract of land called 'Temple Farm," lying in York county, Virginia, to W. S. Peachy, in trust to secure the payment of $8,000, with interest, to James P. Selby. By deed of the 31st of May, 1866, he conveyed the equity of redemption of this deed of trust to Nathaniel F. Williams, of Baltimore, to secure the payment to Martha E. Williams and Clara M. Hewson, of Baltimore, to each the sum of $1,000 and interest, for money borrowed of them. Williams (the trustee) on the 17th |