14 W. Va. 254 | W. Va. | 1878
delivered the opinion of the Court:
The appellant considers the court erred by overruling the demurrer, because it is admitted in the bill, that the sale was by the acre, $19.00 per acre, and that four and one-half acres were reserved and not sold, to appellant, because the title thereto was in dispute; that the bill does not show, where the said four and one-half acres are, whether in the centre or adjoining the sides of the whole tract; and that the deed, tendered with the bill, conveys three hundred and forty-four and one-half acres, while the bill alleges that only three hundred and forty acres are conveyed to appellant, without showing to or apprising him whereabouts the four and one-half acres are, that are alleged to be reserved ; and because, also, the bill shows, that there were not only large credits endorsed on said notes, or one of them, but also that appellant was entitled to further credits, viz : the amounts realized on the sale of property taken under execution, as shown by the return of the sheriff], and that plaintiff does not show what became of the property levied on, except the horses; that in that respect the bill is defec-
As to the credits claimed, the bill is certainly specific. It states the payments, that had been made on the notes; it sets forth the sheriff’s return as to the levy of the fi. fa., showing that he returned the property "for want of time to sell,” and set forth the sheriff’s return on the vendi-tioni exponas, showing a credit by balance on sale of horses §26.03, after deducting sheriff’s commissions, $1.30, leaving a balance of $24.73, to be applied on the execution, and further showed, no other property found. If the appellant was entitled to other credits, it was in his power to make them known in his defense; but I cannot see what ground that-affords for a demurrer.
As to the quantity of land sold, the bill is specific, that the executors sold the appellant three hundred and forty acres of the three hundred and forty-four and one-half acres, but that they reserved from the sale the four and one-half acres, because there was a dispute as to the four and one-half acres. The deed tendered with the bill expressly reserves the four and one-half acres, “which is in dispute and is claimed by Wm. Fought, but conveys to appellant all the right, title and interest of the said James Thompson in and to the throe hundred and forty acres. The appellant took immediate possession of the three hundred and forty acres, knowing at the time that the disputed four and one-half' acres were not purchased by him, but were claimed by Fought. The bill is clear and specific as to the terms of sale, the land sold and the
It is claimed that the court erred in refusing to let the appellant withdraw the answer filed July 24, 1875, and permit him to file another answer, he making affidavit “that the answer filed by him in this cause was intended by him as a guide or memorandum for his counsel to prepare a complete answer to complainant’s bill, and did not know, that the same had been filed for his answer, until after it was filed,” and “that one material matter of defense, which' he desired to make to complainant’s bill, was forgotten by him, and did not occur to his memory, until last evening, July 28, 1875, Avhich matter is as follows: One Edward Deem has a portion of the land sold by complainant to this affiant in actual possession, under force, and has so held for the last five or six years, and also that this affiant has been compelled to pay taxes on the whole tract for eight or nine years, which he thinks ought to be refunded to him.” The appellant insists, that the refusal of the court to permit the substitution of the new answer for the other that was filed was contrary to section 53, chap. 125 of the Code, which declares: “At any time before final judgment, or decree, a defendant may file a plea or answer, but if the same be not filed in due time, an action or suit shall not be thereby continued, unless the court shall for good cause so order.”
It is true a defendant has a right to file his answer at
The bill had been filed the first Monday in April, 1875. If the new matter of defense had truly been material, he should have been permitted to have filed an amended answer setting up such new matter, but in nowise to delay the hearing of the cause. (Wyatt v. Thompson et al.,
The appellant has not brought himself under this rule ; and in fact his affidavit shows, that the matters he alleges arc not material to the merits of this case. He had been in possession of the land under his purchase from October 16, 1865, nearly ten years; yet he wants to show, that Edward Deem has a portion of the land under fence in actual possession, and has so held the same for five or six years. If that is so, Deem was permitted by appellant to come into possession, and the plaintiff has nothing to do with that; nor has it anything to do with the merits of this case. So too with the taxes he has paid for eight or nine years. He should pay taxes on his portion of the land; and if he has paid more than that, he has his remedy, but certainly has no claim against the plaintiff for taxes, that are assessed on said land, since appellant came into possession. The answer therefore, even if treated as an amended answer, is not sufficient as such under the rules; and the appellant has
It is urged, that the court should have referred the cause to a commissioner to ascertain the location of the four and one-half acres, and also to ascertain, whether there were three hundred and forty acres after deducting the four and one-half acres. The appellant purchased the land with his eyes open. He knew what land he was getting; and it is reasonable to suppose, as the four and one-half acres were claimed by Fought and therefore excluded from the sale, that all the parties knew, whore the four and one-half acres were; the appellant knows he has no claim to it; and under the circumstances the court of equity is not required to refer the matter to a commissioner for that purpose, no more than it would be required to refer the title to a commissioner, where the facts are all before the court, and the objection to the title to land purchased is a question of law. Goddin v. Vaughn’s ex’r, &c., 14 Gratt. 102, or where he claims relief in equity against a judgment for the purchase money, on the ground that the title of the vendor is not good. He must prove it to be bad. It is immaterial where the four and one-half acres are located, he having taken possession of the three hundred and forty acres under his purchase, and having enjoyed the land for nearly ten years without molestation, equity will not delay the enforcement of the payment of the purchase money, on the ground merely that he alleges, that he does not know the location of four and one-half acres never sold him, nor because he alleges, that he is not certain, that he has really the three hundred and forty acres sold to him, especially where the court sees the contrary is apparent. Courts of equity will not dally with trifles, that do not enter into the merits of the cause.
As to the question of a continuance : the record does not show, that the appellant ever applied for a continuance. And even if he did apply, what purports to be
The decree of the circuit court should be affirmed, with costs and $30.00 damages; and the cause remanded to said circuit court to be proceeded in according to said decree.
Decree Affirmed. Cause .Remanded.
