1877. July Term. Rhea V. court, delivered by Judge Christian, in a recent case, which has since been very often cited, and was cited by the counsel in this case, Wright v. Pucket, 22 Gratt. 370, there is a concise and perspicuous summary of Jordan. the law in regard to the doctrine of part performance of contracts concerning real estate. The decision of the present case will be found to be perfectly consistent with the doctrine as there laid down. The decree was as follows: The court is of opinion, for reasons stated in writing and filed with the record, that the appellant Rhea is not only entitled, in equity at least, to the appellee Jordan's interest in the said land, but is also entitled to a conveyance of the legal title to the said interest, and might have obtained a decree for such conveyance on a bill for the specific execution of the said agreement, or on a proper cross-bill filed in this suit. And although the cross-bill which was filed in this suit was dismissed as being multifarious, yet the court is further of opinion, that the answer in this case contains all the necessary and proper averments of a cross-bill, and may be regarded as such, and ought to be so regarded for the purpose of doing justice to all parties, and making an end in this case of all litigation between them on the subject of controversy in the case. The court is therefore of opinion, that the decree appealed from, so far as the same is in conflict with the foregoing opinion, is erroneous; and it is decreed and ordered that the same be reversed and annulled, and that the appellee pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here. And this court proceeding to render such decree as the circuit court ought to have rendered, in 1877. July Term. Rhea V. lieu of so much of the decree as is reversed as aforesaid, it is further decreed and ordered, that the original bill of the plaintiff in the court below, Jordan, be dismissed, and that he pay to the defendant Rhea his costs by him about his defence in that court expended. Jordan. And the court proceeding to treat the answer of the said defendant as a cross-bill for the specific performance of the parol agreement in said answer mentioned, it is further decreed and ordered that the said Jordan by deed duly executed and acknowledged by him for record, release and convey all his interest in the land in the original bill mentioned to the said Rhea. Which is ordered to be certified to the circuit court of Washington county. JUDGMENT REVERSED. 1877. July Term Wytheville. NASH V. NASH & als. July 19. 1. Where in a suit in equity, the rights of the parties involves the decision of questions which were not put in issue by the pleadings, or so vague and uncertainly as not to inform the opposite party of what were the issues between them, so that he might prepare his case in a way to secure a full investigation by the court, and a decision according to the very right of the case, and which would do justice to all concerned, the appellate court will reverse the decree of the court below, and send the cause back, with leave to the parties to amend their pleadings. 2. Where the bill does not, in terms, allege that the plaintiff had no knowledge of an unrecorded deed of trust when he purchased the land, though it might be construed as virtually making such averment; and it is not affirmatively averred in the answer that he had such notice, so as to put that matter in issue; proof upon that question by both parties was upon a matter not issue in the cause. In April, 1861, Samuel II. Nash brought his suit in equity in the circuit court of Russell county, against William Nash, Charles S. Bekem and John M. Preston. In his bill he says that on the 31st of March, 1851, he purchased of his brother, William Nash, certain lands in Russell county, being seven-tenths of the lands of their father Wm. Nash, deceased, and also other adjoining lands which he describes. That Wm. Nash wrote, signed and delivered to complainant what he called a title bond, and which he filed as part of his bill marked A. That complainant being unlearned and ignorant, supposed the said bond to be properly written, and set forth the contract plainly and defi nitely, though he is now told that the same is very awkwardly and vaguely drawn. He charges that at the time of the contract, Wm. Nash, as administrator of their father and also of their mother, and as complainant's guardian, owed him a large sum of money. That no settlement had been made, and it was agreed and inserted in the said bond (though very indefinitely) that whatever was due by Wm. Nash to the complainant on these accounts should be credited towards the purchase money of the lands. That Wm. Nash also owed him for ten or twelve years work, and there were other claims held by complainant against him, for all of which he was to have credit, and a settlement was to be made and the whole matter closed up. He charges that he had made frequent efforts to have a settlement with William Nash, and they made frequent appointments of time and place to meet and close the matters between them, but that he always failed to attend. Being a brother, complainant has borne with him thus long, and probably would have still delayed to resort to law, but not very long since complainant was told, to his great surprise, that there was a deed of record in Russell conveying to Charles S. Bekem the lands sold complainant, together with other tracts, in trust, to secure a debt due by William Nash to John M. Preston; and to his still greater astonishment on the 3d of April 1861, he saw an advertisement on the front door of Russell C. H. for the sale of these lands on the 23rd of April, 1861. The advertisement was dated the 9th of March, 1861. A copy of this deed is filed as a part of the bill, and complainant understands that the debt due by said deed has been paid down to about $2,000. And complainant further understands and charges that the lands lying in Scott county and conveyed by said 1877. July Term. Nash V. Nash & als. 1877. July Term. Nash V. als. deed, are more than sufficient to pay the debt secured by the deed if the whole were still due. The complainant charges that the execution of this deed by William Nash was a great fraud, and breach Nash & of faith on his part, and a sale of the lands claimed by complainant would result in his ruin; for everything of value he owns is invested in said lands, and he is not able to purchase for cash at the trustee's sale. He believes that on a settlement with William Nash he will be found to have fully paid the purchase money. He prays that Bekem and Preston be restrained from selling under the said trust deed the lands in Russell county claimed by complainant, until the lands in the county of Scott shall be sold, and shall prove insufficient to discharge the debt to Preston; that an account be taken between complainant and William Nash of all matters in which William Nash is concerned either as individual or as guardian of complainant, or as administrator of William Nash or Margaret Nash; that William Nash be decreed to convey the land sold to complainant upon its appearing that the purchase money shall have been paid; or if he cannot by reason of the trust deed or otherwise, specifically execute the contract, that he be decreed to pay to the complainant what in justice and in equity may be due to him under all the circumstances; and for general relief. The injunction was granted. And at June rules 1861 William Nash filed his answer. He states at length his construction of the paper filed by the plaintiff as a contract, and insists it was no contract, but a proposition, which from the refusal of a party to whom the plaintiff was to pay a part of the purchase money, to take the plaintiff as his debtor, unless defendant would convey the land to the plaintiff, and he would |