51 W. Va. 518 | W. Va. | 1902
H. Willis Knight brought a chancery suit in the circuit court of Greenbrier County against James Knight and others, which was dismissed, and H. Willis Knight appealed.
The plaintiff ■ claims that years ago Alexander Knight, Sr., father of the plaintiff, George Knight, Andrew Knight and
This case involves no points of law necessary to be printed, hut only questions of fact.
The plaintiff seems, but indefinitely, to rely upon the theory as a part of'the consideration of the purchase of the four hundred and forty-one acres, that its owner, Andrew Knight, owed Alexander Knight, Sr., a debt for money paid by Alexander for Andrew as .Andrew’s share of a partnership indebtedness; but the evidence fails to prove that partnership.
A stray expression of Andrew, vague and indefinite, is proven in an unsatisfactory manner, tending to show a partnership; hut when we ask, of what date was the partnership, in what business, what its terms, there is not a particle of evidence to answer. I see no sign of partnership save in lands, and that is joint ownership, not partnership, and it is not shown that the indebtedness related to that. This partnership utterly fails as a consideration for the alleged sale of the four hundred and forty-one acres.
The main reliance of the plaintiff for a consideration for the sale of the four hundred and forty-one acres is that when Alexander Knight, Sr., conveyed to James and Alexander Knight his half of the two hundred and fifty-one acre tract, James and Alexander undertook to pay certain debts, and besides pay Alexander Knight, Sr., two thousand five hundred dollars. What debts were to be paid is not disclosed. The version of the plaintiff and defendants as to their transaction are involved in radically contradictory evidence. The burden is upon the plaintiff to prove the contract of sale of the four hundred and forty-one acres by Andrew to Alexander Knight, Sr., and as the consideration of that contract the burden is upon the plaintiff to prove this two thousand five hundred dollar debt The plaintiff swears to his version. Janies and Alexander Knight flatly deny it under oath, and say that they themselves had paid, as sureties for Alexander Knight, Sr., some five thousand dollars and that of this three thousand dollars was consideration for the conveyance to them by Alexander of his half of the two hundred and fifty-one acres; and they clearly show, by receipts and oral evidence of A. F. Matthews that they did so pay debts of Alexander, and thus plainly have the better of the plaintiff as to this matter. The evidence fails to establish this debt.
Another view against the plaintiff is the space of more than twenty-two years between the alleged sale and this suit. Not that it is a bar by statute, or by laches; yet it affords a very strong circumstance to repel the theory of a sale by Andrew to Alexander of the' four hundred and forty-one acres. Why would Alexander the plaintiff let so many years pass without a deed? They are never once heard asking a deed in all this time. It then was no sale; how does it come that this debt of two thousand five hundred stands so long without demand of payment? It is not claimed that any such demand was made.
It is strongly -confirmatory of this view that neither Alexander Knight, Sr., nor the plaintiff ever paid a cent of taxes on tire four hundred and forty-one acres. James and Alexander Knight paid taxes from 1876 to 1898 inclusive amount
There is something said in briefs about competency as a wit
Complaint is made that the court allowed defendants to file an amended answer. It may be that according to the rule stated in Foulty v. Poar, 35 W. Va. there is a technical objection to this action of the court as the answer introduced matter well known at the time of filing the original answer, but shall we reverse for that cause? This amended answer introduces the record of the 'Dunn and McClintic suits. If introduced as evidence, it would have the same effect as if put in by an answer.. Besides, without that answer or record the plaintiff’s case was not sufficient for relief.
I do not see how the circuit court could have done otherwise than it did, dismiss the bill. Therefore, we affirm its decree.
Affirmed.