McCartney v. Bolyard

22 W. Va. 641 | W. Va. | 1883

Woods, Judge:

The plaintiffs have neither alleged nor attempted to prove any other ground for a cancellation of the deed, or the rescission' of the agreement, than that the consideration thereof going to the plaintiffs has wholly failed, by the failure and refusal of .the defendants to maintain and support them on the farm in the manner provided for in said contract. As every allegation of the bill looking in that direction is explicitly denied by the answer, the burden of proof to support these allegations of the bill rests upon the plaintiffs. The depositions of the plaintiffs themselves, and of many other witnesses, covering fifty pages -of the printed record in this cause wholly fail to prove any failure or refusal of the plaintiffs to discharge any of the duties imposed on the defendants by the terms of said deed, but they do show beyond all question, that if they have suffered any loss it has been caused by their own conduct in voluntarily -abandoning their home and maintenance amply secured to them on the farm by the provisions of the deed. The personal property transferred to defendants by the deed became their own property, and the plaintiffs had no right to interfere with the disposition of it, and the defendants were free to sell or otherwise dispose of it, and of the proceeds arising from the sale of it in whatever manner they pleased. The defendants took their own depositions and the deposition of the notary who wrote the deed, and took and certified the acknowledgments of the grantors thereto, whereby every material allegation of the plaintiffs’ bill was disproved, and all the affirmative allega^ tions of the defendants’ answer were fully established. Ñe are therefore of opinion that the plaintiffs wholly failed to show themselves entitled to the relief prayed for, and that therefore the circuit court of Taylor county did not err in dismissing the plaintiffs’ bill.

The decree of said circuit court is therefore affirmed with costs and thirty dollars damages against the appellants.

The OtheR Judges CoNcurred.

Aeeirmed.