On Motion for Rehearing.
Roberts, Chief Justice.In addition to what is said in the opinion, it may be added that the defendant Ellis, in his amended answer, presented and relied on three distinct defenses to defeat the suit of the plaintiff as to the vendor’s hen upon the land.
1st. That the vendor’s lien had been waived on the original note by its assignment, and had been lost by the substitution of the Holliman note sued on, and by taking sureties upon the substituted note.
2d. That Ellis had a legal title through Pollard, a purchaser without notice of the lien attaching to the land by this note. In this part of the answer the two 'notes held by Ellis were set out ostensibly in explanation of the reason why Pollard would make a sale of the land to him for a very small consideration, in support of the validity and good faith of said sale. When presented in that point of view, and for such a purpose, the plaintiff may have had no occasion to make any defense against them. Had these notes been made the chief ground of an equitable defense, separately and distinctly presented in the nature of a cross-bill seeking affirmative relief, instead of being made, as they were, merely incidental and auxiliary to a legal defense, then plaintiff would have had fair notice, and might have shown, if he could, that the two notes held hy Ellis had been paid, or from some other cause were not entitled to a proportionate share of the proceeds of the land, if sold to discharge the liens upon it. The fact that, as the case stands upon the record now, it appears improb*47able that he could have done so, does not alter the question as one of pleading. Each party to a suit has a substantia] right to be confronted with pleadings of his opponent, so shaped as to give him reasonable notice of what is designed by them. As these notes were pleaded in connection with and as part of a well-defined separate defense of legal title under Pollard, it could hardly have been anticipated before the trial that they were pleaded in the way of a cross-action for affirmative relief on the part of Ellis; and hence the plaintiff could not be expected to have made any defense against said notes in reference to that view of the case, either in his pleading or in his proof.
3d. That Ellis had a legal title through Billingsley, who was a bom fide purchaser without notice of this lien.
After the pleadings have been made up and the evidence has been submitted on the trial, a party should not be allowed, by asking a charge of the court, to give a direction to the case of which the opposite party was not fairly notified by the pleading before the trial commenced.
Motion overruled.