Bank of Winchester v. White. complainant, White, then, instead of renewing the litigation on the lines laid down in the pleadings above recited, introduced evidence of a deed made to one Taul, which on its face, when taken in connection with the chain of title under which the complainant claimed, purported to be superior to the complainant's title. The cross complainant, however, filed no additional pleadings, hence there were no pleadings which would justify the introduction of the before mentioned deed in evidence. Objection was made by the complainant in the court below to the introduction of this deed on the ground that there were no pleadings to justify it; but this objection was overruled by the chancellor, and the deed admitted. The purpose of introducing the deed was, of course, to show that the complainant had no title to the land which it had sold to the defendant and cross complainant; hence that there was no consideration for the note which White had executed to it, and that he had got nothing for the money which he had paid to it. The chancellor decreed in favor of White, but on appeal to this court the cause was referred to the court of chancery appeals, and in that court the decree was reversed. However, the court of chancery appeals declined to render a decree in favor of the bank for the balance of the purchase money due, but directed that the cause should be remanded to the chancery court of Franklin county, to the end that proper pleadings might be filed which would justify the introduction of the deed. The ground of the action of the court of chancery appeals in Bank of Winchester v. White. making the remand was that in its opinion justice required such course in order that the rights of the parties might be correctly determined. The court of chancery appeals, however, found, as it seems, that under the deed of the complainant bank there had been seven years' adverse possession as against the title of Taul or the heirs of Taul; or at least strong grounds for so believing are stated in the opinion of this court. There can be no doubt of course, that the decree of the court of chancery appeals was correct, in so far as it denied any relief to White by reason of the Taul deed, or as based on that deed, for the reason that there were no pleadings under which that deed could be introduced. In the assignment of errors filed in this court by the complainant several grounds are laid on which to base the conclusion that the Taul deed was not a valid deed. This deed is on record in the register's office of Franklin county, and purports to have been made upwards of sixty years ago. It does not appear that either Taul or his heirs ever recognized the deed, or claimed under it, or claimed the land in any way. It does appear that George Gray, the alleged vendor of Taul, at his death devised this land to his son, under whom the bank purchased. It is probable that, if the Taul deed was ever a real conveyance, it was long ago cancelled or rescinded by the parties; otherwise it is not probable that George Gray would have attempted to devise it. However we shall, for the purpose of the discussion which follows, assume that the Taul deed was a valid deed at its incep Bank of Winchester v. White. tion, and that it has never been cancelled. From this standpoint we shall state the question which we regard as decisive of the case. The question for determination is whether the court of chancery appeals acted correctly in remanding the case with leave to White to file additional pleadings. In order to properly dispose of this matter, we have deemed it advisable to re-examine all of our authorities bearing upon the subject, and have done so. We have a statute which regulates the practice, Shannon's Code section 4905 (Code 1858, section 3170), and numerous decisions construing this section. We have also several cases which were decided by the court before the enactment of the Code of 1858, with which the above section originated. These prior cases are Henderson's Adm'r v. King, 4 Hayw., 94, 98; Cain v. Kersay, 1 Yerg., 443; Garner v. Hewet's Heirs, 2 Yerg., 498; Wilson v. Smith, 5 Yerg., 379; Stovall v. Bowers, 10 Humph., 560; McCandless v. Polk & Walker, 10 Humph., 617, 621; Smyth v. Carden, 1 Swan, 28. The cases since the enactment of the section of the Code above referred to are as follows: Cowan v. Dodd, 3 Cold., 283, 284; Grider v. Harbison, 6 Cold., 208, 214; Charles v. Taylor, 1 Heisk., 528; Saylors v. Saylors, 3 Heisk., 526; Stewart v. Glenn, 3 Heisk., 581; Smith v. Hinson, 4 Heisk., 250, 256; Thurman v. Jenkins, 2 Baxt., 429; Fogg v. Union Bank, 4 Baxt., 539, 541; Wood v. Neely, 7 Baxt., 590; Evans v. Thompson, 12 Bank of Winchester v. White. Heisk., 538; McKinley v. Sherry, 2 Lea, 201; McEwen v. Gillespie, 3 Lea, 204; Puckett v. Richardson, 6 Lea, 64; Settle v. Marlow, 12 Lea, 472, 474, 475; Smith v. Carter, 16 Lea, 527; Bank of Jamaica v. Jefferson, 92 Tenn., 537, 542, 22 S. W., 211, 36 Am. St. Rep., 100; Bond v. Montague, 97 Tenn., 727, 37 S. W., 699; Anderson Co. v. Hays, 99 Tenn., 542, 567, 42 S. W., 266; Mfg. Co. v. Weatherly, 101 Tenn., 318, 322, 47 S. W., 432; Schilling v. Darmody, 102 Tenn., 439, 449, 450, 52 S. W., 291, 73 Am. St. Rep., 892; Sully v. Childress, 106 Tenn., 109, 120, 60 S. W., 499, 82 Am. St. Rep., 875; Sawyers v. Sawyers, 106 Tenn., 597, 605, 606, 61 S. W., 1022; Caesar v. Harris, 108 Tenn., 653, 69 S. W., 731. The section of the Code referred to reads as follows: "The court shall also, in all cases, where, in its opinion complete justice cannot be had by reason of some defect in the record, want of proper parties, or oversight, without culpable negligence, remand the cause to the court below for further proceedings, with proper directions to effectuate the object of the order, and upon such terms as may be deemed right." Most of the decisions before the Code (Henderson v. King, Wilson v. Smith, Stovall v. Bowers, McCandless v. Polk & Walker) and some of the cases decided since the Code (Cowan v. Dodd, Grider v. Harbison, Charles v. Taylor, Saylors v. Saylors, Stewart v. Glenn, Smith v. Hinson, Evans v. Thompson), seem to lay down the doctrine broadly that the court will remand for the purpose of filing new pleadings or making additional proof where Bank of Winchester v. White. it can be seen that justice has not been done as the case stands, or that such new pleadings and evidence are necessary for the purpose of effecting justice. These cases do not seem to qualify the duty referred to by any consideration of negligence on the part of the person to be benefited by such remand. However, nothing is said in either of the cases just referred to that would justify the statement that any serious negligence could be overlooked. In two of the earlier cases (Cain v. Kersay and Garner v. Hewet's Heirs), the rule is recognized that there should be no remand if there has been a culpable negligence on the part of the person applying therefor. In several of the later cases (Fogg v. Union Bank, McEwen v. Gillespie, Anderson Co. v. Hays, Mfg. Co. v. Weatherly, Schilling v. Darmody) this point has been emphasized. It is not essential that we should consider separately each of the authorities referred to in this opinion, but it will be found useful, as we think, to refer to a few instances where the court has deemed the oversight not a culpable one, and to others in which it has adjudged that the negligence was culpable. In Wood v. Neely, the case was remanded to enable the party to prove that a certain instrument of writing in his possession, the basis of the suit, had been assigned to him. There was no controversy in the court below on the subject of the assignment, and the testimony, while necessary, was in the nature of formal evidence. In Settle v. Marlow, the |