Blizzard v. Salyer

Sims, J., 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 [609] or not relied on, except one, which, so far as material, is as follows: 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.” [1] It will be seen from the statement preceding this opinion that the bill in the cause before us assails the decree entered in the original suit mentioned as void because of lack of sufficient proof in the record to sustain it in setting aside a recorded deed to appellants in favor of a prior unrecorded deed from the grantors of appellants to another (one Elam) from whom the complainant in such original suit derived equitable title to the land in controversy by purchase as evidenced by a certain title bond given her by said Elam. 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. [2] From the bill in the cause before us it does not appear that such an issue as that last named was made by the pleadings in said original cause. And on referring to [610] the bill in such original cause we see that it is not disclosed by its allegations that appellants were purchasers for valuable consideration without notice of the deed to Elam or that the deed to Elam was unrecorded. So far as appears from that bill, the issue made thereby, to the extent that the suit concerned appellants, was whether the deed to appellants could have operated to convey to them the legal or equitable title to land which their grantors had theretofore conveyed away to another by a prior deed which was in proper form and in every way valid and sufficient to so operate at law and in equity, it not appearing from the allegations of the bill or other pleadings in the cause that the registry statute had any application , to the case. That such statute had any application to the case was not put in issue by-any other pleading therein. 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. [3] The allegation in the bill in the cause before us of the recital in the deed to appellants that the deed was made in consideration of $150 is not a sufficient allegation that appellants were. purchasers for valuable consideration. As said in Lamar v. Hale, supra (79 Va., at p. 157), quoting with approval from Perry on Trusts, sec. 219: “* * * it is not enough that the consideration was secured to be paid, nor is a recital of payment in the deed sufficient; [611] there must he actual payment.” (Italics supplied.) Hence, the bill should have alleged actual payment by appellants of the whole consideration. [4] And there is no allegation anywhere in the bill that appellants were purchasers without notice of the prior unrecorded deed aforesaid. It is true that it may be deduced by calculation based on the age of the elder appellant as alleged in the bill that both of appellants were of a very tender age when the deed to them was made which bears date June 28, 1897 (so young that it may have been impossible for them to have had notice of said prior deed at that time), but that goes only to the matter of proof if an issue had been made by the pleading sufficient to have rendered such proof admissible. Moreover, the bill does not allege when the deed to appellants was delivered; or when the consideration therefor was paid, if actually paid, or that it was in fact paid for their benefit. [5] So far as is disclosed by the allegations of the bill in the cause before us the appellants may have béen of sufficient age to have known, and they may have in fact known, of the prior purchase by their mother before any purchase money was paid by or for them for the land and before the deed to them was delivered. Or it may have been that no purchase money for the land was ever paid by or for them. It may have been that their grantors supposed that they could disregard the prior deed they had made to Elam because such deed had been lost or destroyed and had not been recorded, and they may have mistakenly supposed that the purchase from Elam by the mother of appellants was for appellants’ benefit and have, without authority from the mother, undertaken to convey the land to appellants in disregard of the prior deed to Elam. The bill in said original suit rather indicates that the latter may have been the true state of the case, as it alleges that “said Nellie Meade and husband, without authority,” attempted to convey the [612] land to appellants and their said elder brother. The facts touching this subject have not been alleged in the pleadings In the original suit or in the bill of appellants. When parties, whether infants or adults, seek the aid of courts to enforce their rights, it is essential that they should allege the facts disclosing what those rights are. Neither the court below nor can this court base its decree on facts not alleged or put in issue by the pleadings, nor safely grant relief except upon issues both made by the pleadings and sustained by the evidence in the cause. It is plain, therefore, that there is no error in the decree under review, and it will be affirmed. Affirmed.