| Va. | Feb 18, 1868
delivered the opinion of the court:
The court is of opinion, that the said Circuit Court erred in rendering a decree in favor of the appellee Hagan, without first causing issues to be tried by a jury as hereinafter directed. Therefore it is decreed and ordered, that the said decree be reversed and annulled, and that the appellee Hagan pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here.
And this court proceeding to pronounce such decree as the said Circuit Court ought to have pronounced, it is further decreed and ordered, that a jury be empanelled at the bar of the said Circuit Court, on the chancery side thereof, to try the following issues:
I. Whether the deed in the proceedings mentioned from George W. Mettert to John Hagan was or was not obtained by fraud.
2. Whether, in case the said deed was so obtained by fraud, the same was subsequently confirmed by the said Mettert by his answer to the bill of Mrs. Kyle, or other
3. In case the said deed was so obtained by fraud, and was not so subsequently confirmed, what was the value in money of the consideration, if any, paid or delivered by the said Hagan to the said Mettert for the interest of said Mettert conveyed by said deed. Upon the trial of which issues the said Hagan shall be entitled to open and conclude.
And the court is of opinion, that if it shall be ascertained that the said deed was not obtained by fraud; or, having' been obtained by fraud, was subsequently confirmed as aforesaid, then the same should be held valid without regard to the value of the consideration paid or delivered therefor.
And the court is further of opinion, that though, according to the strict rules of pleading, the said deed could.not be annulled and set aside without a bill or cross-bill filed for that purpose by said Mettert’s administrator, the answer of said Mettert’s administrator may, for that purpose, be treated as a cross-bill, so as to enable the court to do complete justice in this cause; and that if it shall be ascertained that the said deed was obtained by fraud, and was not subsequently confirmed as aforesaid, the same should be set aside and annulled, upon the payment to the said Hagan of the value of the consideration paid or delivered therefor by him, with interest thereon, for the re-payment whereof the said deed should be held as a security.
And the cause is remanded to the said Circuit Court for further proceedings to be had therein in conformity with the foregoing opinion and decree. Which is ordered to be certified, &c. ’
Decree reversed.