125 Va. 604 | Va. | 1919
after making the foregoing statement, delivered the following opinion of the court.
There were a number of assignments of error in the petition for the appeal, all of which, however, were stated in oral argument by counsel for appellants to be waived
1. “The court erred in the original suit” (above referred to, in which Susie A. Blizzard, the mother of appellants, was complainant and appellants and the Elam heirs were defendants) “in decreeing the deed to petitioners set aside, when the suit was heard and determined only upon the bill and exhibits filed with the bill and the denial in toto of the allegations of the bill by the answer of the infants by their guardian ad litem * * * and no proof or depositions taken and filed in support of the allegations made in the bill.”
It is plain from the bill in the cause before us that the decree in the original cause was amply supported in proof by the exhibits filed with the bill- in such original cause and that such decree was right in setting aside the deed to appellants, unless, indeed, they were protected by the registry statute (see. 2465 of the Code) against the said prior unrecorded deed of their grantors to another. To be so protected, appellants must have been complete purchasers for valuable consideration without notice of such prior unrecorded deed.
Such being the nature- of said original suit, if the appellants were entitled to the protection of the registry statute aforesaid, that was a .matter of defense, to the benefit of which they could entitle themselves only - by affirmative pleading setting up such defense and by proof sustaining such pleading. Lamar v. Hale, 79 Va. 147, 157; Rorer Iron Co. v. Trout, 83 Va. 397, 414, 417, 2 S. E. 713, 5 Am. St. Rep. 285, and authorities cited; 39 Cyc., pp. 1778-1780. Such is the general rule applicable to such defense. The same rule applies to infants who seek to show cause against a decree affecting them. See Pierce v. Trigg, 10 Leigh (37 Va.) 406, and note to that case in Va. Rep. Anno.
It is plain, therefore, that there is no error in the decree under review, and it will be affirmed.
Affirmed.