Volume 8 — West Virginia Reports

An appeal, operating as a. supersedeas, by the plain tiff belotv, from the judgment of the circuit court of Ohio county, in a suit lately pending in said court, wherein, John D. Maxwell, as administrator de bonis non, with the will annexed, of Henry Bell was plaintiff, and Robert Humphrey, defendant. The judgment was entered on the 20th day of November, 1873. The other facts, together with the will of said Bell, appear in the opinion of the Court.

Appeal, by complainant below, from a decree of the circuit court of Ritchie county, made and entered on the 4th day of August, 1871, in a suit in chancery therein pending, wherein an injunction had been theretofore awarded, in which Robert W. Stewart, administrator of John W. Westfall, was complainant, and George Jackson, William L. Jackson, Joseph B. Frederick and Samuel B. Frederick, trustee in a deed of trust, executed by said John W. Westfall to said Samuel B. Frederick,…

Appeal, by William H. Shields, from a decree of the circuit court of Taylor county, rendered on the 28th day of September, 1867, in a suit pending in said court between said Shields, as respondent, and Thomas A.. Hoffman, complainant; and also from a decree in the same suit, on a motion to set aside and reverse the said decre'e of September 28, 1867, entered on the 2d day of October, 1871.

Appeal, operating as a supersedeas, granted on the petition of Charles M. Rauch,.from a decree of the circuit court of Wood county, rendered on the 27th day of January, 1874, in a suit therein pending, wherein said Rauch was complainant, and The Blennerhassett Oil Company, James Hutchinson, trustee, Owen Franks and William Scott were respondents. The other facts appear in the opinion of Pauli, Judge.

The complainants below were Robert Hull, late of the firm of Hopkins & Hull, which consisted of Paul B. Hopkins. now deceased, and said Hull, Henry D. Harvey, John Carson, and Samuel J. McKnight, merchants and partners trading under the firm name and style of Harvey, Carson & McKnight; Samuel Gosnefl and John L. B. Gosnell, merchants and partners trading under the finn nimc and style of Gosnell & Brother, and your orators, Cornelius Aultman, Lewis Miller, Jacob Miller and…

At a court held in and for Ohio county, at which the Hon. John Blair Hoge, judge of the third judicial district, presided, on the 3rd day of June, 1873, a judgment was rendered in favor of William P. Hubbard, the plaintiff, against Benjamin F. Kelley, the defendant, for the sum of §266.80, with interest thereon, and the costs. The action was in form indebitatus assumpsit. The defendant applied to a judge oi this Court for a supersedeas to the said judgment, which was allowed.

Appeal, operating as a supersedeas, by Commodore P. Richards, from a decree oí the circuit court of Wirt county, pronounced on the 9th day of May, 1873, in a suit then pending in said court, wherein said Richards was complainant, and John Fisher, E. C. Hopkins, C. B. Roclchold, and Laura M., his wife, and William D. Richards, were respondents. The other facts sufficiently appear in .the opinion of this Court.

Appeal, operating as a supersedeas, granted on the petition of the defendants below, from a judgment of the circuit court of Wood county, rendered on the 27 th day of March, 1873, in a suit therein pending, wherein Edward Tracewell and M. P. Amiss, executors of James Thompson, deceased, who sued for the use and benefit of Edward Tracewell, were plaintiffs, and F. C. Boggs and J. H. Robinson, defendants.

This was an original application to this Court, by the petitioners Joseph Shields and A. A. Preston, to award to them a peremptory mandamus against Edward A* Bennett, then Auditor of State, to compel him to issue his warrant on the Treasurer of State, in favor of the petitioners, for the sum of $229.50, the amounts of premiums on several policies of insurance that had been theretofore effected by the Secretary of the “ State House Company,” on the building then occupied by…

Tlie opinion of the Court contains a sufficient statement of the case. The Hon. James W. Hoge, judge of the circuit court of Mason county, presided at the hearing below.

The case is stated in the opinion of the Court. The Hon. Thayer Melvin, judge of the circnit court of Ohio county, presided at the hearing below.

This was an appeal by Nichols, the sole defendant below, from a judgment of the circuit court of Jefferson ■county, in a proceeding therein, wherein John G. Cock-erell was sole plaintiff. The opinion of this Court contains a sufficient statement of the case. The Hon. Joseph A. Chapline, then judge of said circuit court, presided at the trial below.

This was an appeal from a decree of the .circuit court of Pendleton county, rendered on the 17th day of November, 1871.

This was an appeal taken by Isaac Nichols, from certain decrees and proceedings of the circuit court of Nicholas county, in a suit in chancery therein pending, wherein Alexander Nichols was complainant and the said Isaac Nichols and others, the heirs at law of James Nichols, were respondents. The purpose of the suit was to enforce the specific execution of a verbal contract for the sale of a tract of land by the said James Nichols to the said Alexander Nichols.

Supersedeas to a judgment of the circuit court of Pocahontas county rendered on the 11th day of March, 1872, in a proceeding therein pending, in favor of Matthew Wallace against John W. D. McCarty, Alvin Clark, John I). ELinnison and Andrew J. Overholt. The other material facts appear in the statement of the case by the Court. The supersedeas was granted on the petition of said defendants below. The Hon. Joseph M. McWhorter, judge of said circuit court, presided at the trial.

This was a writ of error to a judgment of the circuit court of Greenbrier county, granted on the petition of Joseph Griffie, praying a reversal of said judgment, rendered in a suit wherein said petitioner was plaintiff and John P. McCoy defendant. The facts appear in the opinion of the Court. The Hon. Nathaniel Harrison, judge of said circuit court, presided at the trial below.

Appeal by William S. Chambers, the defendant below, from a decree of the circuit court of Logan county, rendered on the 2d day oí May, 1372, in a suit therein pending, in favor of R. W. and J. E. Peck, plaintiffs. The opinion of the Court contains a statement of the case. The Hon.'-, judge of said circuit court, presided at the hearing below.

Appeal and supersedeas granted on the petition of Elizabeth Kline, admx. of D. H. Kline and the infant children and heirs of said D. II.

This case was brought into this Court by a writ of error and swpersedeas, allowed on the petition of the plaintiff below to a judgment of the circuit court of Mercer county, rendered at the April term thereof, 1873, in a suit therein pending by the petitioner against Charles Clark and William B. Crump. The opinion of the Court contains a sufficient statement of the case. The Hon. Evermont Ward, judge of said circuit court, presided at the trial below.

This was a supersedeas granted on the petition of the •defendants below, to a judgment of the circuit court of Greenbrier county, rendered on the 27th day of November, 1873, in a suit then pending in said circuit court, between Andrew D. Johnston and others plaintiffs, and Simeon Griswold and Cornelius Eodgers defendants. The other facts appear in the opinion of the Court. The Hon. Homer A. Holt, judge of said circuit court, presided at the trial below.

Supersecteas, granted on the petition of Ambrose Carlton and James H. Gardner, surviving partners of Carlton, Chamberlain & Co., to a judgment of the circuit court of Greenbrier county, rendered on November 3, 1873. The plaintiffs below were the said petitioners, and the defendants Jonathan Mays, William H. Montgomery and F. T. Montgomery. The material tacts appear in the opinion of the Court. The Hon. Homer A. Holt, judge of said circuit court, presided at the trial below.

Appeal and supersedeas, granted on the petition of James M. Gray, to two several decrees of tbe circuit court of Putnam county, rendered on tbe 15th day of December, 1869, and tbe 24th day of October, 1873. The were Thomas M. Donahoe and others, and respondents Wiley Tackier and others. The opinion of the Court contains a sufficient statement of the case.

Supersedeas, granted by a Judge of this Court on the petition of the Commonwealth of Virginia suing for the use of M. P. Amiss, commissioner, relator, who sued for the use of John Hall and Daniel Boughner, late partners under the firm name of Hall & Boughner, the plaintiff below, to a judgment of the circuit court of Wood county rendered on the 23d day of January, 1874, in the name and for the benefit aforesaid, against Cyrus Hall and Lewis A. Phelps, surviving obligors of…

An appeal allowed on the petition of James K. Hinkle, John L. Anderson, and Francis H. Ludington from a decree of the circuit court of Greenbrier county, rendered on the 28th day of November, 1873, in a suit then pending in said court, in' the name of Richard H. Gillilan, executor of Joseph Myles, deceased, against the petitioners. The other facts appear in the opinion of the Court. The Hon. Homer A. Holt, judge of said circuit court, presided at the hearing below:

<p>R., an administrator, signs and delivers to B. a receipt for a certain, ' ° a sum of money, reciting that it is in full payment of all sums his intestate, as per statement thereto attached; this statement shows the whole amount due the intestate’s estate, subject to a credit of 5324, paid to intestate’s widow by B.,.after intestate’s death; this credit (after deducting a small sum for error) with the amount stated in the body of the receipt, makes up the whole amount due intestate’s estate. — Held :</p> <p>That this receipt, in connection with the other evidence in the cause, not being impeached for mistake, error or fraud, is evidence of a settlement of accounts between the parties, and is a ratification and acceptance of the payments claimed as credits in said receipt. 1</p>

Appea] and supersedeas, granted on the petition James B. Bowlin, administrator of Albert G. Jenkins, deceased, to a decree of the circuit court of Kanawha county, rendered on the 2nd day of April, 1872. The plaintiff below was B. M. Sims, and the defendants the Bank of Charleston, the Western Mining and Manufacturing Company, said petitioner Bowlin and others.

The opinion of Court contains a statement of the case. ■ The Hon. Robert S. Brown, judge of said circuit court, presided at the hearing below.

<p>1. A cause may be re-heard upon a petition presented before, the term »/ k k k has passed in which the final decree was pronounced, but not terwards, except by bill of review.</p> <p>2. In a suit by one partner against another for the settlement of a partnership and partnership accounts, after dissolution, where it appears that a large .amount of the partnership debts and liabilities are unpaid, and .for some of which there are judgments against the partners, and that one of the partners has collected more of the partnership funds than the other, ordinarily it is error for the court to decree personally for the money so collected, or any part thereof, in favor of one partner against the other, until the payment of the partnership debts are first provided for.</p> <p>3.Generally, each partner has the right to apply any of the partnership moneys in his hands to the satisfaction of the partnership debts. But the court may, in a proper case, direct a partner who has partnership moneys in his hands to pay the same into court to be applied to the payment of the debts, and in his relief or otherwise, as may be just.</p> <p>4- The partnership moneys and assets, or a sufficient amount thereof for the purpose, should be first applied to the payment of the partnership debts.</p> <p>5. 'Where a bill is filed by one partner against the other, after dissolution, for a settlement of the partnership and partnership accounts, and an order of reference is made in the cause to a commissioner for that purpose, and the commissioner makes his report, to which no exceptions are filed, and the court confirms the report and makes a personal decree in favor of one partner against the other for the payment of money, it is competent, upon a petition for a re-hearing, filed by the partner against whom such decree is made, during the same term, upon a proper case made out, for the court to set aside such decree and recommit the report for fur-tlier account, especially where the court sees that justice and equity, as between the parties, requires such proceedings.</p> <p>6. As a matter of practice, a special receiver, to whom money is directed to be paid by a decree in a cause, should be required to-give bond with approved personal security, with proper conditions, in a penalty fixed by the court, before he is authorized to-receive such money, or any part thereof.</p>

Appeal, by Mathew Ellison, from a judgment of the circuit court of Raleigh county, against him, in a proceeding instituted on behalf and in the name of the Board of Supervisors of said county. The opinion of the Court contains a statement of the case. The Hon. Henry L. Gillaspie presided at the trial below.

Supersedeas to a judgment of the circuit court of Ohio county. The case is fully stated in the opinion of the Court. The Hon. Thayer Melvin, judge of the circuit court of Ohio county, presided at the trial below.

<p>"When, in a deed of bargain and sale, made by a contributor to an incorporated academy, the clause of conveyance to the and trustees is accompanied by general words, that, alone, might or might not create or imply a condition, upon the failure to perform which the estate in the president and trustees would, ipso facto, or upon entry, determine and revert to the bargainor, followed by words declaring and defining a condition on which the estate will revert; and, in a subsequent deed, without the appearance of any other intent than the release and extinguishment of the right of reverter, the general words" are transcribed, and the special provision is omitted — the former words are not construed to create or imply such a condition.</p> <p>2. In an action of ejectment, when an issue has been regularly made, though the oath administered to the jury, well and truly to try the issue joined, is sufficient, an oath, to speak the truth of and upon the premises, is not objectionable.</p> <p>3. Proof that a corporation has an estate in fee in land — whether upon the dissolution of the corporation, the estate would revert to the grantor or not — is sufficient to support a finding by the jury, that the plaintiff has an estate in fee.</p> <p>4. ’When, from documentary evidence and facts not controverted, the right of a plaintiff to a verdict is established conclusively, an instruction — whether it properly state the law or not — can not injure the defendant, and furnishes no ground to reverse a judgment in favor of the plaintiff.</p>

An appeal, granted on the petition of the complainant below, from a decree of the circuit court of Putnam county, in a suit in chancery therein pending, wherein John Mayes was complainant and B. F. and Frank Ruff-ner, respondents. The facts sufficiently appear in the opinion of the Court. The Hon. Joseph Smith, judge of said circuit court,, presided at the trial below.

Appeal and supersedeas, granted on the petition of William Ellis. The decree from which the appeal was taken was rendered in the Mercer circuit court, on the lllh day of September, 1872. The parties to the suit, as shown by the printed record in the case -were, William Ellis complainant, and William E. Heptinstall, Augustus A. Chapman and others, respondents. The other facts ajipearin the opinion of the Court.

The appeal was taken by Joseph H. Simpson and John A. Steel, two of the defendants below — O. L. Williams, late recorder of said county being the remaining defendant. The plaintiffs below were Amanda Wyatt and her husband, James Wyatt. The case is fully stated in the opinion of the Court. The Hon. James M. Jackson, judge of said circuit court, presided at the hearing below.

<p>Appeal from, and supersedeas to, a decree of the circuit court of Wyoming county, rendered on the 19th day of May, 1873, granted by a Judge of this Court on the petition of Richard Smoot, William W. McDonald, George W. Nighbert, Charles H. Greever, William I. Cook, John Lockard and William Ireland, the plaintiffs below. The defendants below were Harman New-berry and Edward McDonald.</p> <p>The opinion of the Court contains a sufficient statement of the case.</p> <p>The Hon. Evermont Ward, judge of said circuit court^ presided at the hearing below.</p>

<p>1. Generally, when, in a deed, lines and corners are described, or when from the statement of courses and distances or other descriptions, in connection with circumstances existing and manifest, or ascertainable, at the time of the execution of the deed, it is presumable that such lines or corners are those referred to in the deed, the statement of courses and distances is, in construction, controlled by the actual lines and corners referred to.</p> <p>2. But the mere circumstance that lines and corners are known to have been run and marked, or are found marked near where the courses and distances mentioned in the deed run, is not conclusive that they are the lines and corners of the land referred to in the deed. And when there is no such approximation in the courses or length of the lines, or the marks on the corners, to the description in the deed, as to warrant the presumption that they are the boundaries of the land to which the deed relates, such marked lines should be disregarded.</p> <p>3. Lines and corners may be marked with the purpose to adopt them in a contemplated deed; but afterwards the marked lines and corners may be abandoned, and mere courses and distances from eer_ tain objects or points may be substituted.</p> <p>4. There is no uniform rule that the length of one line, as mentioned in a deed, shall control the course of another line, or that the latter shall control the former. Other circumstances will determine the adoption of the one or the other.</p> <p>5. Though the quantity of the hind mentioned in the deed, will not control the boundary, when ascertained by the description, with other paramount circumstances, nevertheless, the correspondence of quantity given by a line in question, with the quantity men- ,, j j 1 . ,, J i tioned m the deed, or an approximation to such may be considered as tending to establish such line as the one.</p> <p>G. Generally, it will not be presumed that a party granting land tends to retain a long narrow strip next to one of his lines; but if the courses and distances approximate closely to a line or corner of the tract owned by the grantor — especially if the description in the deed corresponds, exactly or substantially, with the description in the title papers under which the land is hold — it will be presumed that the linos mentioned are intended to reach the corners and run with the lines of the tract, though the trees marked and described have disappeared before the making of the deed.</p> <p>7.A ivriting solemnly signed, sealed, acknowledged before a magistrate, and delivered, by a person, is evidence of his intent, so convincing and conclusive, that, at common law, generally, no evidence will be received to contradict it.</p> <p>8. In a court of equity, however, it may sometimes bo proved that the deed was executed in mistake, and that, in fact, it embodies provisions different from those which the parties intended it to embody. But, even in this court, the deed is regarded as evidence so strong, that only other unequivocal evidence irresistibly conclusive, is sufficient to overthrow it.</p> <p>9. A stockholder in an incorporated company is not so jointly interested with the other stockholders, or so identified with the corporation, that his unauthorized and unwarranted acts will be deemed theirs, or in any manner bind them, to their detriment.</p> <p>10. It is not the duty of the owner of one tract of land to ascertain its boundary for the information of the owner of a coterminous tract, who, without himself ascertaining the boundary,, constructs improvements on the other’s tract, or on his own. in order to the bettor development of the. former tract. The failure of the owner of the land to obtain and communicate such information is neither actual fraud nor culpable negligence.</p> <p>11. If, under a mistake as to the true boundary, one such owner speaks of a part of his land, or treats it, as the land of the other, or acquiesces in acts of ownership by the latter over the land; this will not prejudice the title or right of the former, further than, under certain circumstances and upon proper proceedings, to create, and to subject the land to, a lien for permanent improvements made thereon, above the value of the use of the land; or to subject the title and possession to the operation of actual adverse possession continued long enough, under the statute of limitations, to bar an action of ejectment.</p> <p>12. Certainly such innocent, though erroneous statements or acts, made to or done in the presence of, the owner of coterminous land' without any purpose to deceive, and not relied on by the other as evidence of boundary, cannot render the party so speaking or acting-, in any manner liable, in equity, to the forfeiture of his own land, or the payment of money to indemnify the owner of the adjoining land for improvements he may have made on it, or for expenditures made elsewhere, in orderto facilitate and enhance the use and value of the land owned by the other, as to the boundary of which the mistake has existed.</p> <p>13. The statements, acts, or acquiescence of the owner or claimant of land, are generally evidence against him, under all the circumstances, more or less forcible: But, unless they are vitiated by actual fraud, or culpable negligence tantamount to actual fraud, and are relied on by another as the foundation of material action or acquiescence, they do not estop the owner of the land from asserting and proving his title or boundary.</p> <p>14. In Virginia and West Virginia, generally, when a person has sold and conveyed a tract of land, described as containing a definite quantity, at a specified price, it is presumed that the estimated quantity was believed to bo substantially correct — within five per cent, of exact accuracy — that thiseonstituted a material element in the determination of the price; and that unless it appear that considerable uncertainty or actual risk as to the quantity was contemplated or intended; if in fact the quantity is afterwards ascertained to be materially less, and the purchaser properly asserts his right in a reasonable time and under reasonable circumstances, a court of equity will grant him relief. Though the sale ho not by the acre, but by the tract in gross this, nevertheless, is now the rule of decision. But in many, perhaps in most cases of sales by trustees and other fiduciaries or officers, it may he different. When there has been such a sale and conveyance as has been just described, and subsequently an excess of quantity is discovered, if upon no higher principle, at least upon that of mutuality of right between the vendor and vendee, the former as well as the latter should have redress.</p> <p>15. Because the parties have acted in material mistake as to the quantity that the tract of land sold contained, and so the vendor has agreed to take for the tract a price that, if be had known the quantity, -he would not have taken, when there are no sufficient counteracting circumstances, the court will rescind the contract, unless the purchaser will voluntarily do what appears to be just. But, the vendor having sold and conveyed the entire tract, though supposed to contain a less quantity than in fact it did, and so having conferred on the purchaser an absolute estate at law, the former should be content to take an additional sum, proportionate to the price paid, or agreed to he paid, as the excess of quantity is to the estimated quantity of the tract.</p> <p>10. The purchaser ought to have the option, whether he will submit to a rescission of the sale or conveyance, or pay the addition proportionate price for the excess. But, inasmuch as the ^ . . primary right is to a rescission, subject, however, to the qualifieation just stated, it would seem that, when by the vendor’s act 'negligence, or without the fault of the purchaser, the vendor’s right to a rescission is extinguished, he can no longer be entitled to compensation against the purchaser: Though, perhaps, if it should clearly appear that the bargain was so advantageous to the purchaser, that, if the option of rescission or compensation remained with him, he would elect the latter, the court might compel him to pay the compensation.</p> <p>17. ‘When the purchaser has sold and conveyed the land to another, for a valuable consideration, without notice of the mistake as to the quantity, the right of the first vendor to a rescission of the salo and conveyance made by him, is extinguished; unless there be such mistake in the last sale and conveyance, made under such circumstances, that tlio vendor in that sale is entitled to a rescission ; when, perhaps, the first vendor having such a right against the latter vendor, may be substituted to his right against the purchaser from him.</p> <p>18. When a debtor conveys land to a trustee to secure the payment of debts, no definite price is fixed, and so the estimated quantity of the land is not an element in the fixation of the price. Consequently, excess in the actual quantity of the land, can not entitle the grantor in trust to a rescission of the conveyance, or compensation for the excess.</p> <p>19. The existence of antecedent debts is a valuable consideration for the conveyance or assignment of property to secure the payment of the debts, and the trustee and creditors are purchasers for a valuable consideration.</p> <p>20. Then, in such case, the trustee and creditors are not, in any manner, liable to the grantor in trust, on account of mistake in quan-' tity, and the grantor has no right against them to rescission or compensation, to which his vendor maybe substituted; and any right that, while the original purchaser owned the land, his vendor may have had, to a rescission of the sale and conveyance, is extinguished, unless the trustees and creditors — or at any rate the latter — had notice of the mistake from which the right of the original vendor emanated.</p> <p>SI. Possession of land is evidence that the possessor has the right to the possession that ho enjoys. Generally, a person purchasing a tract of land, is presumed to know who has possession of it, and to ascertain the character of the right by virtue of which he holds the possession; or, if the purchaser fails to do so, lie is charged with notice of the character of the right, so far as this may be necessary to sustain the possession. But the possession by a stranger to the title sold or conveyed, having no right of possession whatever, is not notice, and does not put a purchaser on en-quiry, as to a mistake in a former sale and conveyance, relative to the quantity of the land — in no way pertaining to the right of possession — that gave tho former vendor the right to a rescission of the sale and conveyance, or compensation for the excess.</p> <p>22. 'Whether the time that would bar an action of ejectment for the recovery of land, or a verbal contract for the payment of money or for damages for an injury, elapsed before the discovery of an excess in tho quantity of land sold and conveyed, would bar a suit in equity for the rescission of the contract or for compensation for the excess, or not, it may properly ho asserted, that if the vendor does not bring his suit within such time after tho sale and conveyance, he must make his election and demand, or bring his suit within a reasonable time after the discovery of the mistake. He is not entitled to the time from the sale and conveyance to the discovery of tho mistake, and the additional time thereafter that would bar an action, within which to bring his suit.</p> <p>23. By deed dated tho 31st day of March, 1851, P. granted to The V. O. 0, Company, a corporation, a tract of land, described as six thousand one hundred and twenty-three acres, containing extensive beds of cannel coal, at the price of 8150,000, part in cash and part in stock, the actual value of which may have been more or less than its nominal val ue. In the spring of tho same year the deed was ' accepted, and the consideration paid. The parlies supposed the number of acres mentioned was the'actual quantity of tho land ; but in fact it contained about six thousand nine hundred and seventy-three aeres — about eight hundred and fifty more than was estimated. Tho Y.C. 0. Company made largo improvements oil and off the land, intended to facilitate the removal and transportation of its products. On the Gth day of September, 1859, The V. O. C. Company granted the land (except a part previously conveyed) to S. and B., trustees, to secure the payment of antecedent debts to‘several creditors. At this time none of the parties had discovered tho mistake as to the quantity. The W. M. and M. Company, a corporation, claimed that whatever right P. had in or relative to the land, passed to it. In the spring of the year 1860, the parties discovered the mistake as to the quantity of the land. But The W. M. and M. Company made no demand or election to rescind the sale or conveyance. On the 25th day of September, 1805, S. and B., trustees, sold and granted the land to J. B. S., at tho price of $85,000 — a sum but little more than necessary to pay the debts secured. The purchase, it seems, was made for the benefit of A. and others, some of whom were stockholders in The V. C. C. Company-but others of whom were not. On the 23d day of December the same year, J. B. S. granted the tract of land purchased by, and granted to him. to A. and others. On the 21th day of 1806, The VV. M. and M. Company caused.» summons in chancery to be issued against The V. O. C. Company; and in May of same year filed a bill against the latter Company, and, it being assumed that A. and others had transferred an interest in the land to The P. C. C. Company, in the summer of the year 1867, amended the bill so as to mate that company a party. The Plaintiff in these bills alleged that there was an excess in the quantity of the land granted by P. lo The V. 0.0. Company, but did not allege that either that Compriny or the trustees or creditors, at the time of the conveyance in trust, had any knowledge of any excess, or that The Y. C. C. Company, in any way, received or realized anything more for the land than if there had been no such excess, or any other matter that might entitle The V. C. C. Company to recover against any person, whomsoever, or subject its immediate grantee, or any one claiming through him to a rescission or compensation ; and did not allege or indicate on the part of The W. M. and M. Company, any election or desire for a rescission, or any readiness to refund any money paid for the land, or to pay for any improvements made thereon. But the Plaintiff alleged a mistake in the deed as to one of the lines — an allegation not sustained — and sought a conveyance of that part of the land granted by tlio alleged mistake: — Under such circumstances, and after such lapse of time from the sale and conveyance, and from the discovery of the mistake, before the commencement of proceedings, and upon such pleadings, it is not proper to decree a rescission of the sale or conveyance or compensation for excess of quantity.</p> <p>24. A grant of laud is a mere transfer of such title or right thereto as the grantor, at the time of the grant, may hold or have, absolutely or contingently.</p> <p>25. A grant does not imply an assertion of title in the grantor, or a covenant with the grantee to warrant the land.</p> <p>26. A bargain and sale of land, intended, under the statute on the subject, to operate as a present conveyance or transfer, is not an assertion of title that will estop the bargainor, his heirs or assignees, from subsequent assertion of an after acquired title, and does not imply a covenant of warranty.</p> <p>27. A covenant of special warranty is not intended to bind the cove-nantor to indemnify the covenantee against eviction or damage by reason of any title or claim not, at the time of the execution of the covenant, in the covenantor or some person acquiring it from or through him.</p> <p>28. If at the time of the execution of a grant or bargain and sale of land, with a covenant of special warranty, the title to the land be in a third person, not because of any act or default of the cove-nantor, and such person afterwards assorts and enforces the title-against the covenantee, the covenant is not thereby broken, anti the covenantor is in no way responsible.</p> <p>In such case, if the covenantor, himself, afterwards acquires the title to the land, the title does not, by reason of the special warranty, vest in the covenantee, and the covenantor is not estoppel to assert it or grant it to another.</p> <p>30. If, however, there be false and fraudulent representations as to a material fact, made by .the grantor or bargainor, and relied on by the grantee or bargainee, and this bo properly brought to the cognizance of a court of equity, it will there be a subject for consideration.</p> <p>81. When a. grantor, having title to a part of a tract of land, hut not in fact having title to the residue thereof, covenants to warrant generally a quantity not exceeding that to which ho has title, and to warrant specially a quantity equal to or exceeding that to which he has not title, the covenant of general warranty will he construed as applicable to the land to which the covenantor has title, and the covenant of special warranty, to the land to which he has-not title.</p>

<p>1. Where a declaration in a case contains more than one count, and a demurrer is filed to the declaration, and not to each count thereof, and the declaration contains one good count, the demurrer should he overruled.</p> <p>2. Under the issue and evidence in this case, as stated in the opinion of the Court, it was error in the court below to permit the plain-lift" to prove to the jury the annual rental value of the tract of land in the declaration mentioned, on which the injury complained of is alleged to have been done, with the view of arriving- at the amount of damages the plaintiffs should recover in the cause.</p> <p>Note. — Judge Pauli departed this life May 13, 1875; and, there having been a failure to fill the vacancy caused by his death, the Court, at the Juno and August Terms, 1875, was composed of Raymond, President, and Hoffman and Moore, Judges.</p> <p>3. The court bavins; improperly admitted saidevidor.ee, for the pur-x pose atoresaid, it was not error in the court to reject the ant’s evidence, offered to prove that defendant had paid tiffs in full for the rent, use and occupation of said tract of land, and that plaintiffs had received and accepted the same. The evidence was not relevant to the issue.</p> <p>4. The words “final judgment” contained in, and as employed in, the fifty-third section of chapter one hundred and twenty-five of the Code of "West Virginia, means the “final judgment” mentionedin the forty-sixth section of said chapter. In other words, they mean the “final judgment” mentioned in said forty-sixth section, which every judgment entered in the. office of a case wherein there is no order for an inquiry of damages becomes final, by operation of that section, unless it be sot aside by the defendant appearing and pleading to issue, as provided by the forty-seventh section of said chapter.</p>

Appeal ancl supersedeas from a decree of the circuit •court of Wirt county rendered on the 8th day of May, 1874, granted on the petition of Simon Frank, Daniel Bloom and Leon Hass, partners doing business under the firm name of S. Frank & Co., and also Solomon Sterne, all of whom were the plaintiffs below. The defendants below were Edward Brunnemann, surviving obligor of himself and August Behrens and J. W. Bur-son and Andrew Maze.

Supersedeas to a judgment of the municipal court of Wheeling, rendered on the 28th day of August, 1871, allowed on the petition of the West Virginia Insurance Company — the defendant below. The plaintiff was James IT. Simmons. The other facts appear in the opinion of the Court. The Hon. M. C. Good, judge of said municipal court, presided at the trial below.

Supersedeas to a judgment of the circuit court of Ohio county, rendered on the 21st day of January, 1875, granted on the petition of John H. Cox, the plaintiff below. The defendants were Hamilton Boone, Samuel S. Jacob, John C. Ferris, John H. Montgomery, Joseph W. Ferrill, J. A. Curtis, Peter Delaplaine and A. M. McCulloch, Jr. The other facts appear in the opinion of the Court. The Hon. Thayer Melvin, judge of said circuit court, presided at the trial below.

This was a supersedeas to a judgment of the circuit court of Ohio county, rendered on the 15th day of December, 1873, granted by a Judge of this Court, on the Petiti°n of tbc Franklin Insurance Company, the de-below. The action was instituted in the name M Isaac Miller, on the 28th day of May, 1872, who sued for himself and for the use of Luther E. Magee, David McConnell and L. V. Applegate, “ lat.e owners of the steamboat called ‘Wash.

Supersedeas to a judgment of the circuit court of Ohio county, rendered on the 22d day of January, 1875, granted by a Judge of this Court, on the petition of John C. Campbell. The other facts appear in the opinion of the Court. The Hon. Thayer Melvin, judge of said circuit court, presided at the trial below.

judgment of the circuit court of Wood county, rendered on the 2d day of July, 1874, in a suit therein pending between S. R.. Dresser, plaintiff, and The West Virginia Transportation Company, defendant. The appeal was allowed on the petition of the defendant. The opinion of the Court contains a statement of the case. The Hon. Charles 8. Lewis, judge of the second judicial circuit, presided at the trial below.

Supersedeas to a judgment of the circuit court of Wood county, rendered on the 2d day of January, 1874, in a suit therein depending between A. It. James and John W. Mitchell, late co-partners, doing business under the firm name of James & Mitchell, plaintiffs, and T. IT. Adams, defendant. The supersedeas was granted on the petition of the defendant below. The other facts appear in tlie opinion of the court.

This was a writ of error and supersedeas to a judgrnei~t of the circuit court of Wood county, granted on the petition of Thomas H. Creel, B. H. Foley, Jr., and T. H. Creel, Jr.. the defendants below. The plainti±~ was George L. Harwood. The judgment from which the appeal was taken was rendered on the 8th day of December, 1873. The other material facts will be found stated in the opinion of the Court.

Supersedeas to a judgment of the circuit court of Marshall county, rendered on the 12th day of October, 1872, in a suit then pending in said court between Abner R. Kimmins, who sued for the use of George W. Richmond, plaintiff, and James T. Wilson, defendant. The super-sedeas was awarded on the petition of the defendant below. The other material facts appear in the opinion of the Court. The Hon. Thayer Melvin, judge of said circuit court, presided at the trial below.

Appeal by Lewis Applegate from a judgment of the circuit court of Brooke county, rendered on the 24th day' of June, 1868, in a certain proceeding then pending in said court, wherein said Applegate was1 plaintiff, and William T. Hinkson, defendant. The other facts sufficiently appear in the opinion of the Court. The Hon. E. H. Caldwell, judge of said circuit court at the date of said judgment, presided at the trial below

Supersedeas to a judgment of the municipal court of Wheeling granted on the petition of John Clator, the deíendant.bekrw. The plaintiff was Joseph M. Brodie. The judgment was rendered on the 18th day of May,, 1874. The opinion of the Court contains a sufficient statement of the case. • The Hon. Gibson L. Cranmer, judge of said municipal court, presided at the trial below.

Supersedeas to a judgment of the municipal court oí tbe city of Wheeling, rendered on the 16th day of November, 1874, in a suit therein pending, wherein Robert Bryan was plaintiff, and the Peabody Insurance Company, defendant. The supersedeas was awarded on the petition of the defendant below. The case is stated in the opinion of the Court. The Hon. Gibson L. Cranmer, judge of said municipal court, presided at the trial below.

The case is fully stated in the opinion of the Court. The Hon. Joseph Smith, judge of the circuit court of Kanawha county, presided at the trial below.

Supersedeas to a decree of the circuit court of Jefferson county, rendered on the 13th day of June, 1873 granted upon the petition of the complainants below. The complainants were Clinton H. McKnight and John McKnight, partners, trading under the name and style of McKnight & Brother, and the respondent Bush-rod C. Washington. The material facts appear in the opinion of the Court. The Hon. John Blair Hoge, Judge of said circuit court presided at the hearing below.

Ajypeal by William G. Butler from a decree of the circuit court of Jefferson county, rendered at the September term, 1871, thereof, in suit therein pending, wherein said Butler was plaintiff and Benjamin F. Harrison,. Admr. of 'Vincent M. Butler and others were defendants. The opinion of the Court contains a sufficient statement of the facts in the case. The Hon. Joseph A. Chapline, judge of said circuit court-, presided at the trial below.

This case was brought here on a writ of error to a judgment of the circuit court of Mason county, on the-application of the State. The material facts and also so much of the constitutional and statutory provisions as are necessary to understand the questions discussed and decided by this Court, will be found stated in the opinion of Moore, -Judge. The Hon. Joseph Smith, judge of said circuit court* presided at the trial below.

This case reaches this Court by a writ of error to a judgment of the circuit court of Ohio county, granted on the petition of Taylor Strauder, the respondent. The facts appear in the opinion of the Court. The Hon. Thayer Melvin, judge of said circuit court, presided at the trial below.

The opinion of the court contains a statement of the •case. The Hon. James M. Jackson, judge of the circuit -court oí Ritchie county presided at the trial below. •

This was ail original application to this court, by William Kyle, praying that a writ of prohibition might be awarded against the Hon. Joseph Smith, judge of the circuit court of Kanawha county, commanding him to ab stain from all further proceedings in a cause pending in said circuit court, in the name of the State of West Virginia against William Kyle, who had been theretofore indicted in the county court of said county for a violation of the law providing the mode and…

Writ of error operating as a supersedeas to a judgment of the circuit court of Wood county, rendered -on the 3d day of July 1874, in a cause therein then pending on an indictment against John Cain. The cause reaches this Court by petition of the respondent, Cain. The case is stated in the opinion of the Court.

Writ of error granted on the petition of the defendant below to a judgment on the verdict of the circuit court of Kanawha county, rendered on the 13th day of December, 1873. The case is fully stated in the opinion of the Court. The Hon. Joseph Smith, judge oí said circuit court, presided at the trial below.