90 W. Va. 388 | W. Va. | 1922
This suit is for the purpose of enforcing a vendor’s lién retained in a deed to real estate. On the 6th day of August, 1918, by mutual deeds, C. W. Bowen and E. D. Hoffman exchanged real estate owned by them.' Bowen conveyed to Hoffman 101 41/100 acres, consisting of 5 small adjoining tracts and lying on Little Buffalo .Creek in Braxton County, reciting in the deed, “in consideration of exchange of land this day conveyed to the first party (Bowen) by the second party and the further consideration of the sum of Twenty-six Hundred ($2600.00) Dollars four hundred .($400.00) dollars of which sum is in hand paid by the assignment of the R. E. Mick -note by the said second party to the party of the first part, and for the residue of the balance of the deferred purchase money, aggregating twenty-two hundred ($2200.00) dollars party of the second part has this day executed to the party of the first part his five -negotiable promissory notes,” four of which were for $500.00 each payable in 1, 2, 3, and 4 years, and the other note for $200.00, payable in 5 years from date, all with interest. The deed from Hoffman to Bowen is “in consideration of exchange of land this day made by the said first and second parties.” In September, 1919, Bowen was killed and J. E. Baughman, the plaintiff, qualified as his administrator, and, finding three of the $500.00 notes and the $200.00 note described above in his decedent’s possession, made payable to him, one note thereof being due, he instituted this suit to enforce the vendor’s lien against the land oh Little Buffalo Creek. Defendant denied that any of these notes were liens upon his
Upon this statement of the pleadings the parties went to proof and numerous depositions were taken.
The material evidence adduced by the plaintiff was to the effect that after the death of Bowen the defendant made inquiries of various persons, whose depositions were taken, as to what had become of the notes and stated that he had been cheated in the trade,, and that Bowen had promised to make a reduction of the purchase price, or surrender to him something in the neighborhood of $1000.00 worth of notes. By this evidence it is claimed that defendant had acknowledged the debt after the death of Bowen. George Weese, the first witness, details a conversation that he had with Hoffman in front of Hoffman’s house wherein he stated that he owed
We think the evidence preponderates in favor of the defendant to the effect that these notes have been paid, and consequently they are not liens upon the land. The circuit court so found, but, it not being clear that the claim of $300.00 due the defendant for overpayment had been established, the circuit court refused to allow that sum as affirmative relief asked for in the cross-bill answer. Corroborating the allegation of the answer is the evidence of Fisher, cashier of the bank, to the effect that three of the $500.00 notes were in his possession at various times, the last time within 30 days before the death of Bowen, as collateral security for a debt owing by Bowen to the bank. It is also proven that the $200.00 note had been traded by Bowen to M. B. Sears with the understanding that Bowen should have it back at any time he desired and that it was, in pursuance of that agreement repurchased or “redeemed” by Bowen.
The legal principle involved, the application of which disposes of all the assigned errors, is whether defendant’s evidence is admissible to contradict or explain the consideration named in his deed. It wall be observed that his deed says that the consideration is the exchange of land and the further consideration of $2600. Can this .stated consideration be denied, explained or rebutted? Did defendant agree to pay $4600.00 or $2600.00 less the agreed value of his house and lot exchanged? It is not clear from the deed that the consideration is $2600.00 plus the value of the house and lot. The exchange of property is one of the items of consideration, but it does not follow that the value of the house and
The evidence as to the declarations of the parties after the conveyances were made is contradictory; but the evidence of the contract and the consideration moving the parties thereto- is reasonably conclusive. Moreover, it is well settled by our decisions that where the evidence in a chancery cause is conflicting, doubtful and unsatisfactory, the finding of the lower court thereon will not be disturbed, even though the appellate court might have made a different finding had it decided the cause in the first instance. Ross v. McConnaughy, 85 W. Va. 199; 1 Michie Ency. Dig. 620, and cases cited.
Cancellation of the notes sued on, a release of the lien therefor upon his land, and a decree over against the administrator for $300.00, the amount over paid on the notes by the resale of the horses and wagon to Bowen, are asked as affirmative relief by defendant. As before stated, it is not
Modified and affirmed.