dissenting:
I recognize the force of the view taken by the court in its opinion, and the propriety of and value of the rule commonly referred to as the “law of the case.” But as proper and valuable as that rule is, it should be kept the servant of the administration of justice and not permitted to become its master. As said by Justice Holmes in Messinger v. Anderson, 225 U. S. 486, 32 S. Ct. 739, 740, 56 L. Ed. 1152, 1156, and other cases therein referred to, “In the absence of statute the phrase ‘law of the case,’ as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit upon their powers.”
In my opinion, to require the appellant to accept a deed to the property in question and pay the purchase money to the purchaser in a proceeding to which the judgment creditors of Paschall are not parties and cannot be bound by the decree, will subject him to a hazard to which he should not *288be put by a decree for specific performance, and might work a serious injustice upon him.
This is an exceptional case which requires an exceptional treatment at the hands of a court of equity. It must be remembered that to sustain the prayer for specific performance this court, in effect, had to overrule the case of Flanary v. Kane, 102 Va. 547, 46 S. E. 312, 681, and has done so in a proceeding which the judgment creditors of Paschall were not parties. Even if it be not necessary, in the strictest sense of the word, that these creditors should have been made parties so that they might be bound by the decree, it is, at least, so highly proper that they should be made parties before specific performance is enforced, that I think this court should, on this appeal, have held that the making of these judgment creditors parties came within the purview of what was meant by this court when it remanded this cause with instructions to the trial court “to enter such decree as may be necessary to enforce specific performance.” If, however, the court deems such a construction unwarranted, then I think that it should have so modified its former decree as to direct the. trial court to require that the judgment creditors of Paschall be made parties to this suit before enforcing specific performance. If the judgment of this court that the judgment creditors of Paschall have no right to subject this property to the payment of their debts is correct, Miller cannot suffer by virtue of having them made parties before specific performance is enforced. If they have any rights against this property it would be a manifest injustice to require Kemp to specifically perform; and as they are not bound by the decree Kemp should not be left to the hazard of what will be held with reference to their rights in a suit which may hereafter be brought by them, or some of them, to test their rights.
I do not agree with the court that it was in any way the fault of Kemp that the judgment creditors of Paschall who *289were parties in the court below were not made parties to the former appeal. The court had dismissed the bill both as to them and as to Kemp, and the appellant on the former appeal could, if it desired to have them bound by the decree of this court, have made them parties to the appeal with the same facility that it made Kemp a party to it.