delivered the opinion of the court.

The difficulties of this case arise mostly out of the manner in which it has been conducted. In the very threshhold of it we are beset with the obstacle whether it was an action which under the act of 1849 was triable by the court or by a . jury. On the latter supposition we do not see by what authority the court directed issues to be submitted to the jury. When an action is a proper one to be tried by a jury the issues are submitted as they are made by the pleadings, and a general or special verdict may be found. In such cases the court has no authority to direct any other issue or issues than those which have been already framed by the pleadings; The parties, it is true, may waive a jury and have the action tried by the court, but that was not done here. This suit would seem to be for the recovery of specific real property, yet if that was the aim of the plaintiffs it does not appear what advantage they proposed by the amendment of their petition. The petition as amended, at first sight, would seem to be for the *337attainment of equitable relief, but the omission of proper parties for that end, and the prayer of it, leaves the cause where it was before it was filed. Since the present practice act has been in force, parties seem to imagine that they have a wonderful advantage in involving in uncertainty and doubt the object to be obtained by their pleadings. But we do not see how they can possibly be benefitted by such a course. If the courts will not compel them so to frame their pleadings before a trial is begun, by amendment if necessary, as to show what they aim at, how can they determine in what manner a cause is to be tried, whether by the court or by a jury ? This omission leads to great embarrassment and usually results in a reversal of any judgment the plaintiff may obtain. The case before us seems to have been regarded as one to be tried by the court, and a great many issues were made for trial by a jury ; while the defendants seem to have looked upon it as one to be tried by a jury without any other issues than those presented by the pleadings, and hence framed all their instructions on that supposition; and there is nothing but a jumble and confusion in the record. The questions of law involved are plain and simple; all the difficulties arise or grow out of the manner in which the proceedings have been conducted.

As the record now stands, we must regard this as an action to recover possession of a specific parcel of land; consequently it was a proper one for a jury trial. Yiewed in this light, we are of opinion that in the trial of the cause below too much importance was attached to the circumstance that the will of Jesse Overton was not read on the application for the reservation of the personal and the sale of the'real estate. As the only question before the jury was one of fraud in the sale by the executors or one of them, it was a matter of importance to have that question fairly submitted to the jury; for if the jury was once improperly impressed with the idea that a fraud was practiced by Aaron Overton in procuring an order for the sale of the real estate, they would necessarily enter with that impression on their minds on the considera*338tion of the facts that occurred subsequently with a view to carry that order into effect; and the fact that fraud was used in procuring the order of sale being once unduly impressed on them, they would readily impute fraud in his future conduct in carrying that order into execution. It must be borne in mind that fraud in the sale alone, without any connection with the act of procuring an order, would be sufficient to avoid the sale. But if the mind is once unduly impressed with the belief that a fraud was practiced in obtaining an order of sale, it will much more readily impute fraud to subsequent conduct in carrying that order into effect.

We can not see how the mere omission of itself to read the will of Jesse Overton on the application for the sale of the real estate can affect Aaron Overton with a fraudulent intent. As the will directed the payment of the debts out of the personal estate, it is maintained that the county court erred in reserving the personal and ordering a sale of the real estate. But how is A. Overton to be affected by the errors of that court ? If the order was erroneous it might have been reversed on an appeal. The will was recorded among the records of the court, and was open to the inspection of the judges. By what principle was Aaron Overton bound to present the will to the court ? Is it a presumption of law that he was acquainted with all its contents ? He, it is said, was no scholar and was only one of the executors, and all the business requiring any scholarship was entrusted to his co-executor, he only attending to the out-door matters connected with the administration. If A. Overton was apprised of the provision in the will concerning the payment of debts, and he believed that a knowledge of that provision by the members of the county court would have prevented any order of sale, if he withheld the information for fear of such a consequence, or if he used any practices to hinder the judges from being informed of the provision, such conduct would be evidence of fraud to go to the jury. The jury found that there was no fraud in the co-executor in procuring the order of sale, although he prepared the papers necessary for the application, *339and actually presented it to the court, and although he must be supposed to be as coirversant with the contents of the will as Aaron Overton. We are then of the opinion that the conduct of the court in permitting the evidence of the county justices to be heard, followed by the instruction relative to the provision of the will concerning the source from which means were to be obtained to pay the debts, was calculated to mislead the jury and unduly impress them with the idea that a fraud was practiced by A. Overton because the will was not read.

We are not of the opinion, however, that it was necessary for the plaintiffs to have shown that a fraud was practiced in obtaining the order for the sale before they should have been entitled to a verdict. Although the order of sale may have been fairly obtained, yet a subsequent sale under such an order will for fraud and violation of law be avoided.

We come nest to the question of the admissibility of Clark-son’s evidence against Maxwell. As we understand this case, it goes on the assumption that the sale was void by reason of the fraud and violation of law involved in it; that, although Aaron Overton was the chief instrument in affecting the fraud, yet the defendant Maxwell was a party and privy to it; that Aaron Overton fraudulently and in violation of law became the purchaser of the land through the instrumentality of Clarkson for Maxwell, and that Maxwell was aware of the fraud and participated in it. Under this view it was noces-, sary to show that Overton was guilty of a fraud. Certainly the evidence was competent to that purpose and therefore was admissible. The declarations of Overton, nothing more appearing, would not be evidence against Maxwell. But after evidence tending to show fraud on the part of Overton had been given, Maxwell afterwards becoming a party to the transaction, it was competent to submit his acts and conduct to the jury as evidence that he was privy to the fraudulent designs of Overton. The depositions of Swearengen and Clarkson (independently of what he relates as said by Over-*340ton) furnish evidence proper to be submitted to a jury to show that Maxwell was privy to the fraud.