46 W. Va. 99 | W. Va. | 1899
The Huntington & Kenova Land Development Company filed its bill and amended bill against the administrators and heirs of J. N. Thornburg, deceased, in the circuit court of Cabell County, seeking to enforce specific performance of an alleged verbal contract partly performed. The court, at the hearing of the case, refused the relief sought; hence this appeal. The allegation of the bill in relation to the matter is as follows:
“That on the 1st day of August 1891, it was seised and possessed by a good fee-simple title of the following described lots or parcels of land, situated in Central City, Cabell County, West Virginia, and designated upon the map of said Central City, recorded in the office of the clerk of the county court' of Cabell county, West Virginia, to-wit: Lots Nos. 4, 5, 6, 7, in block No. 50; lots Nos.15, 17, 18, in block No: 59;. lots Nos. 6, 7, 8, in block No. 49; lot No. 21, in block No. 22; lot No. 3, in block No. 73; lot No. 23, in block No. 113; lot No. 17, in block No. 85; and also the following described real estate, situated in Kellogg, Wayne County, West Virginia, and designated on the map of the said Kellogg, filed in the office of the county court of said Wayne County, to-wit: Lot No. 1, in block No. 61; lot No. 21, in block Ño. 15; lot No. 21, in block No. 97; lot No. 5, in block No. 61; lot No. 27, in block No. 105; lot No. 29, in block No. 88. And, we being so seised and possessed of said real estate, plaintiff bargained and sold the same to T. H. B. Thornburg (then in full life) for the sum of twenty-seven hundred dollars ($2,700.00) by verbal contract. That the said Thornburg, in his lifetime, took possession of said lots, and each of them, and paid the taxes thereon up to the time of his death. That he made payments upon said purchase of said lots to the plaintiff as follows, to-wit, on November 2, 1891, $600; on July 12, 1893, $600; and that this was all that was ever paid by the said Thornburg in his lifetime, or by his administrator since his death, or by any of his heirs, or by any one else for him or them; and that there is now due and unpaid to*101 tbe paintiff upon the purchase money of said lots the sum of one thousand eight hundred and forty-six dollars and fifty cents, with its interest. Plaintiff is advised, and therefore alleges, that it has a lien upon the lots of land aforesaid for the unpaid purchase money due thereon, and that it has a right to have the said lots of land sold in satisfaction of its lien. The plaintiff here tenders a deed in compliance with said contract of sale; that plaintiff is entitled to a specific performance of said contract, or a sale of said land. It further alleges that the purchase of all said lots was made at the same time, and is one entire and complete transaction..” The allegation of the amended bill is as follows: “Plaintiff further says: That on the 1st day of August, 1891, it was seised and possessed of a good fee-simple title of the following described lots or pár-eles of land, situate in Central City, Cabell County, West Virginia, and designated on the map of said Central City, recorded in the office of the clerk of the county court of Cabell County, West Virginia, to-wit: Lots Nos. 4, 5, 6, and 7, in block 50; lots Nos. 16, 17, and 18, in block 59; lots Nos. 6, 7, and 8, in block 49, — in Central City, Cabell County, West Virginia; and, being so seised and possessed of said real estate, the said T. H. B. Thornburg, then in full life, purchased said lots from this plaintiff, agreeing to pay therefor the price of $300 per lot, less 10 per cent., making, net, $2,700. This agreement was by parol at the time it was entered into, and afterwards it was ratified and approved by a written memorandum made by the said T. H. B. Thornburg, which is filed herewith as a part of this bill, marked‘Exhibit No. 2.’ That the said Thornburg, in his lifetime, took possession of the said lots, and each of them, and paid the taxes thereon up to the time of his death. That he made the payments on the purchase of said lots to the plaintiff as follows: On November 2, 1891, $600; on July 12, 1893, $600; and that these were all the payments that were ever made by the said Thornburg in his lifetime, or by his administrator since his death, or by any of his heirs, or by any one else for him or them; and that there is now due to the plaintiff upon the said purchase money of the said lots the sum of $1,846.50, with its interest.” The allegation of the answer to the bill is as*102 follows: “These respondents say it is not true, as alleged by plaintiff, that.it, the said plaintiff, bargained and sold the said lots in Central City and Kellogg, as set forth in plaintiff’s bill, to T. H. B. Thornburg in his lifetime, for the sum of $2,700, by verbal contract. They expressly deny that said T. H. B.. Thornburg, in his lifetime, took possession of said lots, and each of them, and paid the taxes thereon up to the time of his death. These respondents say that the said plaintiff issued stock of its company, known as ‘allotment stock,’ at the par value of $100 per share, whereby it agreed with the purchasers of said allotment stock to convev by good and sufficient deed of general warranty, free from any and all incumbrances whatever, one lot of land as laid off by said company upon the plats of said Central City and Kellogg, as aforesaid, for each and every two shares of such allotment stock purchased by any and all persons; and these respondents now allege and charge that their intestate, T. H. B. Thorn-burg, possessed twenty (20) shares of the said allotment stock issued by the plaintiff, and paid for the same in full, whereby he became entitled to ten (10) lots, which were assigned to him and for which although fully paid for he did not receive a deed in his lifetime nor has any deed been made for the same to his heirs at law since his death. These respondents further say that in the year 1891T. H. B. Thorn-burg, then in life, made a verbal contract for the purchase of ten (10) lots of land in the town of Central City which were at the time of this contract selected by him and the price thereof fixed at $2,400, $1,200 of which was to be paid in cash, and the other $1,200 to be paid in allotment stock, which had theretofore been issued by the plaintiff, and $20,000 of which had been subscribed and paid for by the said T. H, B. Thornburg. These respondents further say that the said T. H. -B. Thornburg did pay upon asid purchase of said 10 lots on November 2, 1891, $600, and on July 12,1893, $600, making the $1,200 in money that he had agreed to pay at the time of said purchase; that these defendants deny that there is now due and unpaid to the plaintiff upon the purchase money of said lots the sum of $1,846.60, with its interest.”
The allegation of the answer to the amended bill is. as
So far as the competent evidence, and, it might be said,
A firmed.