(after making the foregoing statement), delivered the opinion of the court.

[1] 1. The first assignment of error is that the decree of the September term, 1916, should have been set aside because of the alleged action of Webster’s attorney in misleading Perrow into absenting himself from the taking of the depositions upon which the decree was based. The evidence is not sufficient to sustain this contention. Perrow was duly notified of the time and place of the taking of the depositions. He appeared accordingly, but the witnesses were very slow in making their appearance. After remaining at the office of counsel for Webster in Rustburg, where the depositions were to be taken, for about two hours, he left in order to catch a morning train back to his home in Lynchburg. He claims that he had discussed a compromise with counsel for Webster and left under the impression that nothing further would be done in the cause until *329he had been further communicated with on the subject; but the burden was on him to establish the grave charge he is making, and even his own version of what transpired in Kustburg on the occasion in question is insufficient to sustain it, while the testimony of the attorney who is alleged to have mislead him is clear and convincing to the contrary. The circuit court, as shown by its decree, was “of the opinion that the charge of fraud was absolutely without proof to sustain it,” and in this opinion we concur.

[2] 2. The next assignment of error is as follows: “As the county clerk has no power to receive delinquent taxes and release the lien thereof where land is sold to others than the Commonwealth, unless the purchaser was at the time not a resident of the county, or could not be found therein (which was not true in this case), or unless the purchaser had refused to accept payment of said delinquent taxes from the former owner of the land (which was likewise not true in this case), it was error for the court to hold that said 12 acre tract had been redeemed by payment to the clerk.”

The proposition upon which this assignment is based is correct. Sections 650 and 651 of the Code are conclusive of the question.

[3] Nor was the error in the decree cured by its further finding that the tax deed was void for want of a seal and for failure to comply in form with certain statutory requirements. These defects rendered the deed voidable but not void and they were susceptible of remedy by a new deed. “If the recitals in a tax deed do not conform to the facts, the officer may execute a second deed. The decisions sustaining this rule are based on the principle that it is the duty of the officer to execute a good and sufficient deed of the land sold to the purchaser. He can be compelled to do this by mandamus, if he neglects to perform his duty.” 3 Devlin on Deeds (3d ed.), section 1413, and cases cited there.

*330[4] 3. It is next insisted that “No process having been issued on the answer of Wingfield’s heirs, which is prayed to be treated as a cross-bill, and no answer having been filed thereto, and appellant having no notice thereof, it was error to treat same as a cross-bill and to grant affirmative relief thereon, same being entitled to be treated only as an answer.”

This position is likewise well taken. The proof shows, and it is not denied, that when the decree of March, 1916, which permitted the answer tó be filed, was entered, Per-row had not retained and was not in any way represented by counsel. The recital therein that “by consent of all parties, by counsel, this cause is set for further hearing,” etc., was plainly, though doubtlessly inadvertently, untrue as to him. It is not claimed that he ever appeared to the original bill or to the answer, and it is clear, therefore, under elementary rules of practice, that the latter could not be treated as a cross-bill against him without process having been issued thereon.

It is contended on behalf of the appellee that the lack of process on or appearance to the answer as a cross-bill was immaterial, because the cross-bill does not ask for any relief substantially different from that prayed for in the original bill. We cannot accede to this view. The specific prayer of the cross-bill is for a cancellation of the tax deed, and no such special relief is asked for in the original bill. It is true that both the original bill and the cross-bill contain alternative prayers for general relief, but, as wie shall present^ see, the occasion for the court to award relief under the general prayer did not arise.

[5] 4. The fourth assignment is as follows: “As the bill of the appellee, Webster, was a bill quia timet, and lacked the requisites of a bill for rescission, and no fraud or mistake was alleged, it was error for the court to decree a rescission of the contract between Perrow and Webster, and said *331decree is in that respect void, as is also the decree of July 14, 1917, reaffirming same.”

It might perhaps have been more accurate to designate the bill as one for specific performance, but, waiving this purely formal question, the substance of the assignment is sound, because the decree went further than the scope of the pleadings required or warranted under the facts as developed. It may be conceded that the allegations of the bill were such as to have entitled the complainant to a decree for rescission of the contract under the prayer for general relief, if it turned out that the defendant could not make a good title to the 12 acre tract. But the special prayer of the original bill was that the title to the 12 acres be perfected and the cloud thereon be removed at Perrow’s cost. It appears from the record that this relief could have been awarded by requiring Perrow to obtain a new and proper deed from the clerk; and this, therefore, is the relief to which Webster, under the case as made out by his own pleading and proof, is entitled at the present stage of the cause.

[6] The remaining assignments of error do not call for any discussion. As to them we deem it' sufficient to say ■ that in our opinion they do not point out any error of which the appellant can rightfully complain, if it should hereafter develop that he is unable to procure a good and sufficient deed to the 12 acres. The whole case, so far as he is concerned, must turn upon his performance of his contract in this particular. While we do not regard the charges in the bill such as to impute fraud on his part in the clear and definite manner required in suits for rescission, we think the allegations and proof are such as to entitle the complainant to a rescission rather than a recovery of a part of the purchase money, in case the title fails as to the 12 acres. The decree complained of reaffirms the decree of September, 1916, which declares that “the land was bought as a whole *332and would be practically worthless for the purposes for which bought without the” 12 acre tract, and this fact is satisfactorily established by the evidence. While there has as yet been no actual ouster of the appellee as to the 12 acre tract, the Wingfield heirs are actively asserting claim to it, and the title which Perrow had is, as it now stands, defective. His deed to Webster was not merely a general warranty deed, but covenanted also that he had the right to convey and would execute any further requisite assurances. The case is not, therefore, controlled by the rule that a purchaser in quiet possession under an executed contract with merely a general warranty must seek his remedy at law and is not entitled to a rescission in equity for a defect in title. In other words, the well settled doctrine applied in Max Meadows Land Co. v. Brady, 92 Va. 71, 22 S. E. 845, does not apply to the instant case. The land having been bought as a whole, and the defect in title affecting the main object of the purchase, the purchaser cannot be adequately compensated in damages by a recovery of a pro rata part of the purchase money, and a rescission of the contract is the only appropriate and adequate remedy to be decreed if the covenants in the deed are not made good.

We are of opinion to reverse the decree complained of, and allowi the appellant a reasonable time within which to perfect the title to the 12 acre tract. If he succeeds in doing this, the cause should then be dismissed at his cost. If he fails to do this, it would then be proper for the lower court to enter a decree substantially in accord with the one now under review.

A decree to this effect will be entered in this court, and the cause remanded for further proceedings to be had in accordance with the views expressed in this opinion.

Reversed.