Hill v. Proctor

10 W. Va. 59, 1877 W. Va. LEXIS 67
West Virginia Supreme Court·Decided April 28, 1877·Published·Cited by 59 cases

Opinion

HayjMONd, Judge:

At June rules, 1868, Mayberry Proctor filed his bill in the circuit court of Kanawha county, against George W. Hill and Rebecca, his wife, James E. and Betsy Kendall and Biddy Ann Woody, as heirs at law of Joseph C. Kendall, deceased. The bill alleges, that on the 9th day of January, 1844, Joseph C. Kendall made a written contract, by which he agreed to convey to Berry Proctor (that being the name by which he was familiarly called) a tract ol land in Kanawha county, on waters of Blue creek, to-wit, on the Big Fork of Blue creek, from the first hollow below the improvements where Simon Oxier lived, crossing the creek at right angles so as to include both improvements where Child-ers Branham then tended, and where said Oxier tended-in 1843, and thence to said Kendall’s upper line, excepting the minerals on said land. The said contract is exhibited with the bill, as exhibit “ A.” The bill further alleges, that the consideration to be paid by the plaintiff' for said land was $300, of which $265 was paid at the date of the contract, and the balance has since been paid and discharged, as will be seen by the inspection of said contract and the endorsements there[62] on ; that by the said contract, said Kendall bound him-se^> ar*d his heirs* to make a conveyance for said land, when the balance due on the land should be paid. The bill further alleges that Joseph Kendall, at his death, left, as heirs, James E. Kendall, Betsy Kendall, Rebecca Kendall, whose husband is George W. Hill, and Biddy Ann Woody, who married — Woody, who has since died. The bill prays that, if necessary, a survey of said tract may be ordered by this Court to ascertain the true and precise boundaries of said tract of land, and that the defendants may be required to make to plaintiff a good and sufficient deed therefor. The bill also contains a prayer for general relief. The said contract is filed, but it does not appear to be marked “A.” The contract is in these words:

“Know all men by these presents: That I, Joseph C. Kendall, am held and firmly bound to Berry Proctor, in the sum of $300, to make to him all my right, title and interest to a certain piece, of land, lying on the Big Fork of Blue creek, from the first hollow below the improvement where Simon Oxier lived, crossing the creek at right angles, so as to include both improvements where Childers Branham tends, and were tended in 1843, and thence to Kendall’s upper line, minerals excepted; and when said Proctor shall pay the residue of said $300, which is $45, the said Kendall having received $265, then he, the said Kendall, binds himself and to-the above right.
“ Given under my hand this 9th day of January, 1844.
[Signed] “Joseph C. KeNdall.
“ Witness — M. JoNES.”

This indorsement appears on said contract: “Received payment in full, by an order, verbal, on W. Tompkins, April 16, 1844-.”

[Signed] r J. E. KeNdall.’

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Hill v. Proctor, 10 W. Va. 59, 1877 W. Va. LEXIS 67 (W. Va. 1877).

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