Hill v. Proctor

10 W. Va. 59, 1877 W. Va. LEXIS 67
CourtWest Virginia Supreme Court
DecidedApril 28, 1877
StatusPublished
Cited by59 cases

This text of 10 W. Va. 59 (Hill v. Proctor) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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

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]*62on ; 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.’

A diminution of the record in this case was suggested by the appellees, and a writ of certiorari awarded by the court and duly issued to the clerk of the circuit court of [63]*63Kanawha county, commanding him to certify and transmit to this court the omitted parts of said record, &c. And the clerk of said circuit court, in obedience to said writ, certified to this court a copy of an answer of said Hill and wife, which the clerk certifies has this indorsement thereon 1868,. July Rules. This ans. and ex. filed.” The answer appears to have been sworn to by the defendant, Geo. W. Hill, on the 28th day of July, 1868. ' The said indorsement on the answer is not signed by the clerk, nor does it appear that the filing of the an-' swer was entered on the rule book at July rules, or at any time. Nor is there any order of court showing the filing of said answer. It appears that on the 16tL day of October, 1868, the cause “ came to be heard upon the bill and exhibits taken for confessed, and set for hearing as to all the defendants, they having been duly served with process, and still failing to appear and plead, demur or make answer thereto, and was argued by counsel* And on motion of complainant, it is adjudged, ordered and decreed, that the surveyor of this county, do, after giving reasonable notice to the parties, go upon the premises described in complainants bill and claimed by him to have been purchased of Joseph C. Kendall, and survey and lay off the bounds of the same according to the description made thereof in the title bond of said Joseph C. Kendall to the complainant, bearing date the 9th day of January, 1844, and filed as an exhibit with complainant’s bill, and that he return a report, &c.” On the 20th of October, 1870, the court made an order by “consent of the counsel of the respective parties,” displacing the surveyor, and appointed Thomas J. Mathews, and ordered him to do all the surveying and perform all the duties required of said surveyor by the order appointing him, &c. It also appears from the record, that on the 8th day of November, 1872, the court made this entry in the cause of record: “ The defendant’s, by their counsel, this day tendered their answer to the complainant’s bill, and the complainant [64]*64takes time to .consider thereof.” Immediately after this entry as the record comes to ns, appears what purports to be “the joint answer of Geo. W. Hill, Rebecca Jane Hill, James E. Kendall, Elizabeth A. Kendall, Biddy siAnn Clay, alias Woody, alias Jarrett, Ernest A. Kendall and his sister, Elizabeth J. Cemmer, to the bill of complaint of Maybeny Proctor, exhibited against them in the circuit court of Kanawha.” This answer in the body thereof is partly joint and partly several. Elizabeth A. Kendall, for herself in said answer, says that she is the widow of said Joseph C. Kendall, and claims to be entitled to dower in the land claimed by plaintiff. She also claims that her husband only sold plaintiff two hundred acres of land. Ernest A. Kendall and his sister Elizabeth, for answer for themselves, among other things, say that “ they are the lawful heirs and devisees of Joseph C. Kendall, according to his last will and testament, in all the real estate and mineral reserves of which said Joseph C. Kendall died seized, and that they claim, by virtue of his will, "all the unsold land. See will on record, <&c.” This answer appears to have been sworn to by Geo. W. Hill and Elizabeth A. Kendall. It appears that the plaintiff took the'depositions of Page Stanley and Stephen Morris, and, before taking the same, he addressed a notice of the time and place of taking the same “ to James E. Kendall, George W. Hill and Rebecca, his wife, Betsy Kendall, widow of Joseph' C. Kendall, and Biddy Ann Woody.” This notice seems to have been served on Betsy Kendall among others. The surveyor, Mathews, made his report in the cause as follows : “ Your surveyor respectfully reports that the plat and reports in the cause of G. W. Hill v. Mayberry Proctor will fully explain this cause to which reference is made.” It further appears that at July rules, 1868, said George W. Hill and his said wife filed their bill against Mayberry Proctor. In this bill it alleged that George W. Hill married Rebecca J. Kendall, the daughter of Joseph C. Kendall, deceased; that on the 13th [65]*65day of August, 1853, tbe said Joseph C. 'ELendall sold and conveyed to the plaintiffs, for the sum of $900, a certain tract of land lying partly in Kanawha county and partly in Nicholas county.

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Bluebook (online)
10 W. Va. 59, 1877 W. Va. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-proctor-wva-1877.