111 U.S. 789 (1884), Baines v. Clarke

Citation:111 U.S. 789, 4 S.Ct. 671, 28 L.Ed. 599
Party Name:BAINES, Adm'r, etc., v. CLARKE and others.
Case Date:May 05, 1884
Court:United States Supreme Court
 
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Page 789

111 U.S. 789 (1884)

4 S.Ct. 671, 28 L.Ed. 599

BAINES, Adm'r, etc.,

v.

CLARKE and others.

United States Supreme Court.

May 5, 1884

Appeal from the Circuit Court of the United States for the District of West Virginia.

COUNSEL

Page 790

[4 S.Ct. 672] C. Bogges and S. A. Miller, for appellant.

Wm. Pinckney Whyte, for appellees.

OPINION

WAITE, C. J.

On the second of February, 1874, John D. Lewis conveyed to George W. Norris and Henry Clarke three certain tracts of land embraced within the exterior boundaries of a survey of 40,000 acres granted by the commonwealth of Virginia to Jacob Skyles on the eleventh of July, 1798. The instrument by which the conveyance was made was signed by both parties, and contained not only a grant of the land, but an agreement on the part of the grantees for the payment of the purchase money. That agreement was as follows: 'The consideration of this deed is five dollars per acre as aforesaid, to be paid as follows: $50,000 in cash, the receipt whereof is hereby acknowledged; $25,000 to be paid on the first day of October, 1874; $25,000 on the first day of April, 1875; $50,000 on the first day of January, 1876; and $50,000, or whatever may be the balance due, on the first day of January, 1877, with legal interest on all the deferred payments from the third day of June, 1873, said interest to be paid semi-annually, commencing on the first day of July, 1874. And it is further understood and agreed by the parties to this deed that an accurate survey of the lands hereby granted shall be made under the direction and superintendence of S. A. Miller, of Charleston, to ascertain the true quantity of lands intended to be granted, such survey to be made by running the exterior lines embracing the said three lots made by Surveyor and

Page 791

Commissioner Thomas S. A. Matthews, previous to the sale, and now of record in the proceedings aforementioned, and as described and set forth in this deed, and in the deed from James M. Laidly, survey commissioner, of himself and said Matthews, under the decrees and orders in said proceedings for the sale of Jacob Skyles' survey of 40,000. And, as it is further known that there are sundry suits pending in the circuit court of Kanawha county between the said John D. Lewis, as defendant, and Hale and McMullin, George Belcher, W. A. McMullin, J. L. McMullin, and George W. Morrison, as plaintiffs, all of which are now submitted to arbitration by an order of said circuit court; it is further agreed that any recovery of any land within the boundaries aforesaid shall be and constitute no part of the lands herein sold and granted, but be deducted therefrom at the said rate of five dollars per acre, the said John D. Lewis agreeing to use all diligence in the prosecution of said suits, so as to obtain a speedy trial; * * * it is further understood and agreed that the last payment, or balance of $50,000, due first of January, 1877, and interest, is reserved until the decision of said suits, and the ascertainment of quantity; and the said John D. Lewis hereby reserves a claim upon the land...

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