25 S.E. 102 | Va. | 1896
delivered the opinion of the court.
The appellees filed their bill in the circuit court of Floyd county to compel the specific performance of a contract for the sale of a certain tract of land in that county, made in the year 1865 or 1866, whereby H. B. Showalter sold to George Hambrick, one of the appellees, the tract of land in question, at the price of $120, and the latter was put in possession of
That the court below correctly decided that there was a writ
The principal witnesses relied on by the plaintiffs in the lower court to prove that Hambrick had paid for the land are William J. Hambrick, his son, and one James Kirby, and these witnesses pretend to know what the contract was ; and, according to their testimony, the land was sold by parol agreement in 1865 or 1866 for $40 in cash, and a wagon, which, according to their statement, were paid and delivered, — the money when the trade was made, and the wagon in 1866 or 1867. It is true that one
F. A. Dowler, a brother of H. B. Dowler, who was examined as a witness for the defendant Showalter, was asked the following question : ‘ ‘Didyou have any transaction with said [George] Hambrick or Showalter for H. B. Dowler? If so, state where and when, and what was it about.” And his answer was : ‘ ‘Yes ; I had a transaction with them both for H. B. Dowler in March, 1882, in Floyd county, Va. H. B. Dowler held a deed of trust on certain land belonging to H. B. Showalter, to secure the said Dowler in a debt owing from him (said Showalter). I, as attorney in fact for H. B. Dowler, in about March, 1882, went to see H. B. Showalter about payment of the debt; but he did not pay me the money, but gave me an order to [George] Hambrick for $120, amount claimed by Showalter to be owing him from said Hambrick, and I went there and saw Mr. Hambrick. He said he owed the money to Mr. Showalter, but that he did not then have it so that he could pay me. ” Then, in answer to other questions, this witness says that, when he took the order for $120 to Hambrick, he said he owed that amount to Showalter, and, as witness thought, said it was for land, and said he would pay the witness that amount, and oifered to secure it by deed of trust on real estate, and wanted witness to release the deed of trust held by H: B. Dowler on the land of Showalter, and said that if he would do so he (Hambrick) would secure the $120 by other real estate. Then,
It seems that, as early as in 1871, — long after Hambrick’s witnesses attempt to show that this money had been paid, — H. B. Dowler placed his claim in the hand of Mr. Trigg, a lawyer, who wrote to George Hambrick with regard to the money, and received from him a reply dated January 2, 1871, in which he says : £ £I will be sure to get some money next March for some land I sold last month, and I promised H. B. Showalter, some time back, to help him to * * * some money that he promised you, and I am disappointed, and will be sure to pay him §100 some time in March, 1871; and I will write to Dowler, and I think it will satisfy him.” This letter is filed as an exhibit with the defendants’ answer, and that it was written by George Hambrick is nowhere questioned. After Lester had purchased this land from Showalter, young Hambrick obtained a warrant against Lester for trespassing on the land, and a trial of this warrant was had ; and it is shown by the justices who tried the warrant, and whose depositions are taken in this cause, that at the trial neither George Hambrick, nor either of his sons to whom he had sold the land, claimed that the land had been paid for to Showalter, although Showalter made the statement that no part of the purchase money had been paid. Nathan Phillips, one of the justices, testified that he had a conversation with G. E. Hambrick a few days before the warrant trying, in which he (G. E. Hambrick) said : “¥e have not paid for the land, but don’t say anything about it. We are going to hold it by possession. If we can’t hold it that way, we are going to give Lester all the trouble we can. We don’t propose for him to run us out like dogs. ’ ’ Then, on cross-ex
We might further examine the evidence on behalf of the defendants in the court below (the appellants here) to show that George Hambrick had never paid for the land in question, but deem it unnecessary. The witnesses that we have referred to are not contradicted^ and are corroborated by other witnesses, and by circumstances shown in the record. We are of