Maxwell v. Burbridge.

• Decision Date: 08 December 1897
• Court: West Virginia Supreme Court
• Parties: Maxwell et al. v. Burbridge.

44 W.Va. 248

Maxwell et al.

v.Burbridge.

Supreme Court of Appeals of West Virginia.

Submitted June 11, 1897

Decided December 8, 1897.

1. Equity Pleading Answer Receipts Handwriting.

A defendant in a chancery suit in his answer alleges that plaintiff's decedent delivered his three receipts to respondent for money paid him on account of the matter in controversy, and files with his answer, as part thereof, what purport to be the original receipts. Such receipts, under section 40, chapter 125, Code, will be regarded by the court as genuine, without-any proof of the handwriting-, unless the fact that such receipts were made by plaintiff's decedent is denied by affidavit.

2. Equity Pleading Handwriting Depositions Error.

Unless such affidavit is filed, it is error to admit depositions, taken on behalf of plaintiff, attacking the genuineness of such receipts.

3. Equity Pleading Receipts.

An allegation that plaintiff delivered his receipts to respondent is equivalent to alleging that he made such receipts.

Appeal from Circuit Court, Doddridge County.

Suit byW. Brent Maxwell, as administrator of the estate of Franklin Maxwell, deceased, and others, against J. P. Burbridge. From a decree for plaintiffs, defendant appeals.

Reversed.

G. W. Farr, for appellant.

Millard F. Snider, for appellees.

McWhorter, Judge:

On the 14th day of December, 1889, Franklin Maxwell and J. P. Burbridge entered into the following-contract: "This agreement, made this 14th day of December, 1889, between Franklin Maxwell and J. P. Burbridge, witnesseth, that said Maxwell doth sell, with covenants of general warranty, all the land he has on the north side of Red Lick run, adjoining said Burbridge's land and the Ab. Stout or Walker 79 1/2 acres on the ridge, or point to the ridge, next Allumbank, to the lines on said ridge, around the head of Sleeper run, and, with the lines of the Thaddeus Sutton tract, to a gum; thence back, with lines of Greathouse tract, to the 4 chestnuts; thence to 2 C. O., and to a white oak, at the price of five dollars per acre, with interest from the 22d day of November, 1882, and all but two hundred dollars of the money, and interest on that from the 1.4th day of December, 1889, subject to a credit of twenty-five dollars paid on the 22d day o:: Nov., 1882, and paid as per receipt; also, one hundred dollars the 15th of April, 1889; and also for a yearling steer, $18.00, fall of 1888. Witness our hands and seals. And a vendor's lien is herein retained for the purchase money. Witness," etc. "Franklin Maxwell. [Seal.] J. P. Burbridge. [Seal.]" And on the same day said Burbridge executed to said Maxwell the following obligation: "For the land this day bought of Franklin Maxwell, I promise to pay said Maxwell five dollars per acre for forty acres, with interest from this 14th December, 1889, and live dollars per acre for all the balance, with interest from the 22d day of November, 1882, till paid. Said land here bought includes all the land said Maxwell now has on the north side of the Red Lick run, adjoining lands of myself, the Ab. Stout or Walker tract of 79 1/2 acres on a ridge, or point to the ridge, next to Allumbank; thence westwardly, with lines of Williams tract, to the land of Sleeper run, to Thad. Sutton tract, and with a gum corner of said tract and of Greathouse; thence, with Greathouse tract, back to a W. O. corner; thence back with my line, to the beg. And this is subject to a credit of twenty-five dollars, paid on the 22d Nov., 1882, when I bought the most of the land, and $18.00 paid in a yearling steer, fall of 1888, and one hundred dollars paid as per rect., April 15th, 1889. Witness my hand and seal this 14th Dec., 1889. And the first note to be given up, which was dated Nov. 22d, 1882. J. P. Burbridge." At the May rules, 1894, W. Brent Maxwell administrator of the personal estate of Franklin Maxwell, deceased, and Frances Jane Maxwell, widow, and Lemon Maxwell, Lewis Maxwell, Porter Maxwell, and W. Brent Maxwell, only heirs at law, of Franklin Maxwell, deceased, filed their bill in equity in the clerk's office of the circuit court of Doddridge county against J. P. Burbridge; alleging the sale of said land at five dollars per acre; that the first named tract contained, by actual survey, seventy-one acres, and the other forty acres, making in all one hundred and eleven acres. And they exhibited with their bill said obligation of Burbridge, alleging that the purchase money of both of said tracts, except the credits shown in said obligation, was due, and still remained unpaid; that Franklin Maxwell was deceased, and they were his only heirs at law, and were ready and anxious to convey said land to defendant, Burbridge, on payment by him to the administrator of Franklin Maxwell, deceased, of the unpaid purchase money, with interest, and the taxes paid on said land by said Franklin Maxwell and plaintiffs since the sale to the defendant, etc.; that defendant failed and refused to pay said unpaid purchase money, taxes, and interest, and praying that said land be sold for the payment of said purchase money, and for general relief; and exhibited with their bill, also, a memorandum showing the metes and bounds by actual survey of the said two tracts together, surveyed as one, as containing one hundred and eleven acres.

Defendant Burbridge demurred to said bill, which demurrer was overruled; and at the July term, 1894, he tendered his answer to said bill, in which he objected to being compelled to file his answer until plaintiffs should file in the papers of the cause the notes, or single bills, held by said administrator against respondent, and alleged that about 1882 he purchased from Franklin Maxwell a tract of land, which said Maxwell claimed contained ninetyfive or ninety-six acres, at five dollars per acre, and that for said number of acres defendant gave his notes, or single bills, one of which Maxwell agreed, to deliver up to respondent, as shown by the contract first above copied, and which is exhibited with the answer; that respondent purchased from Maxwell a tract of forty acres more on the 14th of December, 1889, as shown by the second paper hereinabove copied; and that said Maxwell made to respondent a title bond to the ninety-five acres in 1882, and that the same had been mislaid or destroyed, or else was in possession of Maxwell's administrator. "Respondent further says: That he executed obligations to said Maxwell for ninety-five and forty acres of land, one hundred and thirty-five acres of land, at five collars per acre. That he paid therefor as follows, to wit: November 22, 1882, twenty-five dollars; eighteen dollars for yearling steer, fall of 1888; one hundred dollars April 15, 1889, as shown by Exhibit No. 1 (Maxwell's receipt); June 17, 1891, fifty-six dollars; April 13th, ninety dollars (think it was in 1891, not certain as to exact date); and two hundred and twentynine dollars on September 17, 1891; all aggregating five hundred and eighteen dollars, except respondent paid first note off, which respondent thinks was about one hundred and eighty dollars, and payable in one or two years from its date, and which was paid before said Exhibit A was executed; and the above payments were made on the supposed balance yet claimed to be unpaid by said Maxwell, and for which the last payment, Maxwell's receipts are here filed, as parts 2, 3, and 4 hereof. Respondent further says that said Maxwell delivered said receipts to respondent for said payments, and that respondent let him have the cattle and pension check referred to therein, and that the same was paid to said Maxwell on said tract of land. Respondent further says that, after said Maxwell had sold said tracts to respondent as ninety-five and forty acres, said respondent discovered that instead of being one hundred and thirty-five, as he had purchased, there was...