Powell v. Et Ux.

• Decision Date: 31 January 1871
• Court: West Virginia Supreme Court
• Parties: William G. S. Powell v. Aaron T. Batson et ux.

4 W.Va. 610

William G. S. Powell

v.Aaron T. Batson et ux.

Supreme Court of Appeals of West Virginia.

January Term, 1871.

1. A chancellor has a discretionary authority to direct or to decline to direct an issue to try any material fact put in issue by the pleadings in the cause. Such discretion, however, is a sound or legal discretion, and its improper exercise either in directing or declining to direct an issue, may be reviewed and corrected by the appellate court.

2. The proper criterion by which to test the propriety or impropriety of such an issue, is that, where in a given case the decree rendered is sustained with reasonable certainty by the facts and circumstances disclosed by the record, there would be no error in omitting or refusing to direct an issue to try any material matters of fact put in issue by the pleadings. But if the correctness of the decree is made to depend on the existence or nonexistence of such material facts, and the evidence and circumstances of the case are so equally balanced as to make their existence or non-existence doubtful, then it would be error to fail or refuse to direct an issue to be tried by a jury.

3. In the case at bar neither party demanded an issue, and as the decree was justified by the evidence, it was not error in omitting to direct an issue to try the validity of a paper-writing in question.

4. A case in which a motion for a re-hearing on the ground of after-discovered testimony, was properly refused, as the testimony was only cumulative.

Bill filed at April roles, 186(3, in the clerk's office of the circuit court of Taylor county, by Aaron T. Batson and wife, against William G. S. Powell.

It alleged that on the 6th of June, 1844, one Davidson and wife had conveyed to the complainants and defendant, a tract of land, lying in Taylor county, containing 67 1/4 acres, which was subject to a dower interest of the mother of the female complainant and the defendant. That in August, 1846, the complainants sold to the defendant 22 1/2 acres of the tract, being their interest therein, exclusive of the dower interest, and executed a title bond therefor, for the sum of 200 dollars. That afterwards, in 1852, the complainants purchased back the 22 1/2 acres from the defendant, and paid him in full for the same, as was evidenced by a receipt filed with the bill. This receipt was as follows:

"Receipt in full of all dealings of note or account between me and A. T. Batson, and said Batson is to have the land back that he sold me, which Batson has satisfide me for these 22 1/2 acres.

" June 9th, 1852. W. G. S. Powell."

The bill further alleged that, in this latter settlement and purchase the complainant Batson took up the title bonds he had executed in 1846, to the defendant, and that the complainants executed a deed to Powell for the said 22 1/2 acres, in pursuance of the title bond, but the defendant had never recorded it. That the defendant promised that he would destroy the deed so made by the complainants, which they supposed he had done. That all parties supposed this arrangement was sufficient at the time, but the complainants had been advised that the defendant should have reconveyed the land. That the defendant had been in possession and occupancy of the land ever since 1852, without rendering rents or profits. That the widow died in 1864.

The bill asked that the defendant be compelled to make a deed of general warranty for the 22 1/2 acres, and account for rents and profits; and also the land be so partitioned as to give complainants one moiety of the 67 1/4 acres, according to quantity and quality.

The defendant answered that he purchased the whole interest of the complainants in the 67 1/4 acres, in 1846, and had paid for the same. That shortly after purchasing the same, he had begun to make, and had completed valuable improvements on the land; that he had erected a steam mill at a cost of 3, 000 dollars thereon, with the full knowledge of the complainants, they residing only about seven or eight miles therefrom, and being aware that the defendant claimed the property; that the steam mill was erected after 1852, and that the complainants never set up any claim to the land until within a few years before the suit was brought. The answer admitted the execution of the title bond in 1846, and averred that the complainants tendered a deed for the 22 1/2 acres, which he did not accept, because it did not convey all the land purchased, as he understood the contract. That the title bond remained in the possession of his stepfather, where defendant made his home, until complainants sent for it, alleging that they wanted to see it, so as to make a deed for the land; which occurred between 1848 and 1850, or thereabouts. That defendant had not seen the title bond since; that complainants sent out a deed which he objected to, and which had been left at his stepfather's; that he had frequently requested complainant Batson to produce the title bond and correct the deed, and he had promised to do so, but had failed so to do. That the deed had remained with the papers of his stepfather, and after the decease of the latter, the complainant Batson had called and examined them, and defendant had not seen the deed since. The defendant denied expressly that he ever resold the land to the complainants; that he executed the receipt of June 9th, 1852, and declared the same a forgery; that defendant never surrendered the title bond, directly or indirectly, or promised to destroy the deed tendered, or ever accepted the deed in a legal sense.

The answer claimed that the complainants should be com pelled to execute a deed for the moiety of the 67 1/4 acres.

A cross-bill was filed, which set up more in detail the matters alleged in the answer, and interrogating the complainants specially The answer to the cross-bill also set out the details more fully alleged in the original bill, and denied all allegations of fraud, and brought out more fully the point at issue, concerning the validity and genuineness of the paper of June 9th, 1852.

The depositions taken in the cause were voluminous, and related principally to the genuineness of the signature of defendant to the receipt mentioned above, except the depositions of W. H. Shields and Isaac A. Morris, taken for the complainants. Several depositions proved the signature not to be the genuine signature, or not to look like defendant's signature. Two witnesses testified positively as to its not being the genuine signature of the defendant.

Shields, Morris, Maxwell, Davis, and J. 0. Fleming, testified to its being his genuine signature. The three former were sought to be impeached, and much contradictory testimony was taken on this point, but as it is of the usual character in such cases, and the court here determines, upon consideration, that the effort to impeach was not successful, it is not thought necessary, or to be of interest, to set it forth.

Shields, for the complainants, proved that sometime after the sale of 1852, the defendant got him to go to the complainant Batson, to make some arrangements about cancelling the trade about the land. That he was to go to the latter and try to get back some paper-writing which the former had given to the latter, respecting the land. That witness did so, but Batson refused to do anything; but he refused to give up the contract, and said he intended to hold the land. That he returned the answer of Batson to Powell, who said something about a deed that if he had not destroyed it he could have still held the land. That witness had been sheriff for over eight years from 1850, and generally Batson had paid the taxes on the land; sometimes, however, Powell paid them; sometimes each one paid half the taxes.

Morris, for the...