Opinion.

brought suit and obtained a decree subjecting said land in the hands of said Hatcher to the payment of said liens, and upon the application of the plaintiffs in the bill of review, an injunction was granted restraining said creditors, and the commissioners appointed for the purpose, from executing said decree, by a sale of the same.

These creditors of Daniel G. Hatcher were made parties defendant to said bill of review, filed their demurrer and answer thereto, and are represented as appellants here.

In the year 1860, said Margaret Hatcher, not in her fiduciary capacity, but in her individual right, together with others, her sureties, made a note on which a loan of $4,000 was obtained from one W. A. Caldwell, of North Carolina. This money was applied to the payment of a debt of $4,000 due from the estate of the decedent to John C. Staples, which debt was in the hands of the sheriff of Patrick, and then being pressed for payment. It is admitted in the bill of review that this was a valid subsisting debt, and that it was discharged with the money so borrowed, and that Daniel G. Hatcher, neither as administrator nor otherwise, had any previous knowledge of, or connection with the borrowing of this money. In 1861, said Margaret Hatcher, with the same parties as her sureties, borrowed the additional sum of $1,200 from one Israel G. Lash, also of the state of North Carolina, one thousand dollars of which was applied to the reduction of said Caldwell debt. With this transaction Daniel G. Hatcher had no connection whatever, he being at the time in the Confederate army. With the money thus borrowed the estate of D. B. Hatcher was relieved of $4,000 of unquestioned indebtedness; and Margaret Hatcher, with her sureties, had incurred a merely personal liability therefor, in no possible way connected with the estate of the decedent. Neither Caldwell nor Lash could make any charge against the estate for the money thus loaned on the personal credit of their said debtors. Some nine or ten years later, when the slaves remaining, by common consent unappropriated to the payment of the debts of

Opinion.

the decedent, had been freed by the war; and said Daniel G. Hatcher had returned from the war and found himself, as well as others, the victim of the common ruin of the times, and his embarrassment greatly increased by the generous protection and liberality which he had extended to the estate and family of his dead father, he, in looking to his own interests, and in the exercise of his unquestionable right as a man and citizen, became the purchaser and owner of the said debts due from Margaret Hatcher and others to said Caldwell and Lash at, as it appears, about twenty-five cents in the dollar. The transaction was seized upon as unauthorized-charged to have been a fraudulent speculation in the assets which came to his hands to be administered, and was made the foundation for said bill of review. This is substantially the case upon the merits; and while much more might be said, it is useless to push this view further, as the case must, as before stated, turn upon the question whether the bill of review is sufficient in its frame and structure.

In the first place, the bill seeks to review, reverse and annul the final decree in the suit of Reynolds v. Hatcher's administrators, after the lapse of three years from the rendition of that decree, when the statute (Code 1873, chapter one hundred and seventy-five, section five,) expressly prohibits such a bill after the expiration of said period from the time of the rendition of the decree sought to be reviewed. Moreover, a bill of review must state or exhibit to the court the proceedings in the cause in which the decree to be reviewed was rendered. Adams' Equity, 792. In this case only the final decree is brought into the case, so that in the nature of things the court could not proceed intelligently to review the decree complained of even if the bill had been brought in good time.

Again, a bill of review founded, as in this case, on the alleged occurrence or discovery of new matter, must not only be filed by leave of the court, but must be supported by affidavit satisfying the court that the new matter could not, by reasonable diligence, have been discovered or used before the decree was made; and showing also the relevancy and materiality of such matter, and

Opinion-Decree.

that if previously before the court would probably have occasioned a different decision. Ib. 790; Whitten v. Saunders, 75 Va. 563; Sand's Suit in Equity, 701, and authorities there cited. In this case, as before stated, the transactions connected with the Caldwell and Lash debts constitute the ground work, the foundation of the bill of review. From the facts disclosed by the record, it is manifest not only that by ordinary diligence these matters could have been discovered, but in all probability were known prior to the rendition of either of the decrees in question. But, however this may be, the alleged new matter was wholly irrelevant and immaterial. The affidavit, as well as the bill on its face was fatally defective; and the demurrer to the bill should have been sustained. However, the cause in the meantime having been removed to the circuit court of Floyd county, came on to be heard in that court on the 23d day of November, 1882, when a final decree was rendered reversing and annulling the decree of November, 1877, made in the suit of Reynolds v. Hatcher's representatives, &c., annulling the deed from Penn, commissioner, to Daniel G. Hatcher, made in obedience to said decree; annulling the decree made in 1879, in the suit of Hatcher's heirs v. Hatcher's administrators; charging Daniel G. Hatcher with the $4,000 purchase money of said Reynolds land, and crediting him with the amounts paid and agreed to be paid for said Caldwell and Lash debts, and some other amounts not necessary to be named; and further declaring an equity in the heirs of D. B. Hatcher prior and superior to the claims of the creditors of Daniel G. Hatcher, as to said Reynolds land: all of which is grossly erroneous and unjust. For these reasons said decree must be reversed and annulled, with costs to the appellants and a decree entered dismissing said bill of review, with costs to the defendants in the court below.

The decree was as follows:

This day came again the parties by their counsel, and the

Decree.

court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that said decree of the circuit court is erroneous in overruling the demurrer to the plaintiff's bill, and that the demurrer to the bill of review ought to have been sustained; and it is therefore decreed and ordered that the appellants recover against the appellees their costs by them expended in the prosecution of their appeal aforesaid here. And this court proceeding to enter

such a decree as the said circuit court should have entered, doth further decree and order that the plaintiff's bill be dismissed, and that the defendants recover against the plaintiffs their costs by them expended in their defence in the said circuit court; and the same is ordered to be certified to the said circuit court of Floyd county.

DECREE REVERSED.

VOL. LXXVII-77

Syllabus.

Wytheville,

YOST V. MALLICOTE'S ADM'R.

July 26th, 1883.

1. EQUITABLE JURISDICTION AND RELIEF-Vendor and vendee.—If in sale of land at gross price upon estimate of quantity influencing price, mistake occurs, which, if understood, would probably have prevented sale, or varied its terms, equity will afford relief.

2. IDEM-Contract of hazard-Sale in gross-Mistake.-A sale in gross, quoad thing sold, means a sale without regard to quantity, and is in that sense a "contract of hazard." In such case there is no ground for relief. The mistake of the parties is the true ground of relief.

3. IDEM-Compensation-Exception.-In case for relief, the general rule of compensation is according to the average value of the whole tract, except where peculiar circumstances require a departure therefrom. 4. IDEM-Mistake-Deficiency-Compensation-Case at bar.-Y. bought of M. land represented by vendor to contain two hundred and forty acres, at $5,000, took possession, made cash payment, and executed bonds for deferred payments. When judgment on these bonds was about to be enforced, Y. surveyed the land, and discovered deficiency of seventyfive acres, which, by mutual mistake, was unknown at time of sale. Vendor told vendee the tract certainly contained two hundred and forty, and probably two hundred and fifty acres, and that he should have twenty dollars an acre. On the land were a frame dwelling, the usual outhouses, &c., estimated as worth $2,271.

HELD:

1. Y. is entitled to an abatement from the price of the land ($5,000) of the amount obtained by multiplying the deficiency, seventy-five acres, by the price per acre ($20) as of the date of the sale.

2. There are no exceptional circumstances which require a departure from the general rule of compensation, and here the value of the improvements must not be considered. The case is unlike that of Watson v. Hoy, 28 Gratt. 698.