23 W. Va. 744 | W. Va. | 1884
In January, 1882, Ephraim Bee filed his bill in the circuit court of Roane county against James E. Burdett alleging therein that he had in 1876, sold to'the defendant a tract of ninety acres of land lying in said county at five dollars and
The defendant filed his answer in which he admits the purchase of the land at the price per acre stated, but denies that there is anything due from him on the purchase-money. He avers that after the deed had been delivered to him he informed the plaintiff that lie did not believe the tract contained ninety acres, and thereupon it was mutually agreed that one Andrew Stalnaker should ascertain the quantity by survey and his survey should be taken as the true number of acres in the tract; that Stalnaker made the survey and ascertained the true quantity to be but eighty acres, three roods and thirty-three poles; that he made two payments on the deferred installments of the purchase-money, one of forty-four dollars'on March 7,1877, and the other of one hundred and forty-eight dollars and fifteen cents on March 6, 1879.
lie further avers that, on August 7,1865, he and the plaintiff made a written agreement whereby they compromised two suits then pending-between them involving thte title to one thousand acres of land by agreeing to divide said land and dismiss said suits with the express agreement that the plaintiff should pay him five dollars per acre for so much of his improvements on said land as should by the division fall to the share of the plaintiff; that after the purchase of the ninety acres of land aforesaid he and the plaintiff agreed that said Stalnaker should survey and ascertain how much of his improvements on said one thousand acres fell to the plaintiff by said division, and that the value of the same should be credited on the purchase of said ninety acres; that Stalnaker did survey and ascertain the quantity of improved.land for which he was entitled to be paid to be nine and three fourths acres, which at five dollars per acre with interest thereon amounted, as of March 8, 1876, to seventy-nine dollars and
The plaintiff filed a general replication in writing to said answer and to the affirmative allegations he replied specially. He denied that there was any agreement to credit- the value of the improvements of the defendant, which fell to him in the division of the one thousand acres of land, on the purchase-money for the ninety acres of land, and averred that if anything was chargeable to him on that account the same was by agreement between him and the defendant to be credited on a judgment of the county comf of Jackson county which he held against the defendant.
The replications as well as the answer of the defendant were sworn to. The defendant rejoined generally to the plaintiff’s special replication.
On May 10, 1883, the court by its decree ascertained that the balance due the plaintiff, after deducting the two credits of forty-four dollars paid March 7, 1877, and one hundred and forty-eight dollars and fifteen cents paid March 6, 1879, was one hundred and eiglity-nine dollars and sixty-six cents as of that date, and decreed that unless said sum and the costs of suit should ho paid in thirty days the laud should be sold by a commissioner to pay the same. From this decree the defendant obtained an appeal and super sedea*.
The appellant claims that the circuit court erred in allowing the plaintiff’s special replication to his answer to be filed, because it was not sworn to by the plaintiff but by his agent. I do not think this objection is well taken; but if it were, it raises an immatei’ial enquiry in this cause. The affirmative matter alleged in said replication is entirely unsupported by any proof in the record; and, moreover, the matter of the answer to which it offers a reply did not call for affirmative relief, but merely alleged a specific credit which was purely defensive and was not therefore the subject of a special replication according to the settled rules of equity practice— Enoch v. Oil Co., supra, p. 314; Depue v. Sergeant, 21 W. Va. 326. The plaintiff’s bill was not sworn to and thus, under our statute, the answer, so far as it was merely defensive,
It is also claimed by the appellant that the court erred in not allowing him credit for the deficiency in the ninety acre tract of land and for the amount to which he claimed he was entitled for his improvements on that part of the one thousand acres of land assigned to the plaintiff under the compromise and agreement mentioned in his answer. These are the important matters in this cause.
It is not disputed that the sale of the ninety acre tract was by the acre. It then there was a deficiency in the quantity the appellant was clearly entitled to an abatement of, or credit on his purchase-money for such deficiency at the contract price of five dollars and fifty cents per acre. The survey of Stalnaker, showing the quantity in the tract to be over nine acres less than ninety acres, the quantity sold, is exhibited with and made part of the defendant’s auswer, thus establishing the right of the defendant to a credit of about fifty-three dollars for said deficiency; and there is no exception to this survojn This the circuit court should have allowed to the defendant, and it erred in not doing so — Crslip v. Cain, 19 W. Va. 438; Anderson v. Snyder, 21 Id. 632.
The defendant has also exhibited the contract, dated August 7, 1865, with his answer, to show that the plaintiff agreed to pay him five dollars per acre for so much of his improved land as should fall to the plaintiff' in the division of the one thousand acres of land therein mentioned. But there is no proof in the record even tending to support the allegations of his answer that the value of said improvements had been ascertained to be seventy-nine dollars and seventy cents or any other sum, nor that anything was in fact due on that account, nor that the plaintiff had agreed to credit whatever might be found clue therefor, on the purchase-money claimed in this suit. This claim is denied in both the general and special replications of the plaintiff’ and, consequently, in the absence of any proof to sustaiu it, I am of opinion that the court did not err in disallowing it.
I arh, therefore, of opinion that the decree of the circuit court, for the error aforesaid, must be reversed with costs to the appellee; and the cause is remanded to the circuit court with directions to that court to allow the credit here-
ReveRsed. Remanded.