Gray v. Bryson

Truly, J., delivered the opinion of the court. The decree appealed ‘from is manifestly not responsive to the pleadings. It does not dispose of any of the material issues raised by the pleadings and the proof. This is a final decree, rendered after full proof upon the matters presented by the bill of complaint and answer had been made; but it does not dispose of those questions and leaves the rights of the parties still unsettled. The decree should have shown the finding of the chancellor upon the real merits of the controversy, and, further, should have shown what amount, if anything, had been paid upon the “homestead lot” of the appellant under the agreement relating thereto, and what sum was due as the entire indebtedness of the appellant to Thornton, and then should have decreed the sale of the property for the amount so ascertained to be due, upon default of payment by the appellant within a reasonable time, fixed by the decree. In view of the undisputed proof that the insurance money, at least, had been collected by Thornton to be applied to the indebtedness secured by the trust deed, it was manifest error to dismiss the bill of complaint and permit the entire property to be sold, without fixing the amount still due and affording complainant an opportunity of redeeming her property by payment of the balance so found owing. The admitted rights of appellant were not recognized in the decree rendered herein. We are asked in this court to credit the amount of the insurance money upon the indebtedness and to render here a decree for the proper sum. This we are unable to do, because that [310] matter was seemingly not inquired into, and certainly not adjudicated, by tbe chancellor; and, therefore, such order would not be in the nature of a modification or correction of an erroneous decree, but would be, in effect, an adjudication here of matters left undetermined^ and perhaps not fully developed, in the court below. Reversed and remanded, to be proceeded with in accordance with the views above expressed.