1877. August Term.

Harmison
V.

Loneberger et al.

On the first Monday of December 1868, at rules, the plaintiff filed his bill in the cause in the clerk's office. In the bill the plaintiff alleges that on the 5th day of November 1866, the said Loneberger sold to said Hayes a certain tract of land lying in said county of Barbour, adjoining the lands of Isaac Booth's heirs and others, containing two hundred and fifty-seven acres (describing the boundaries), for which said Loneberger and wife executed to said Hayes a deed with general warranty, reserving therein the vendor's lien for the unpaid purchase money; that said sale was made for the consideration of $2,000.00; $1,066.663 was paid in hand, and for the residue the said Hayes executed to said Loneberger his two obligations for the sum of $466.663 each; that the last of these obligations became due on the 5th day of August 1868; and on the 10th day of the same month the said Hayes paid thereon $47.25. An official copy of said deed is filed with the bill, and the material contents of the deed seem to be correctly described in the bill. That on the 10th day of September 1868, for a valuable consideration, the said Loneberger assigned, transferred and delivered the said obligation to plaintiff by an endorsement on the back thereof. The obligation with the endorsement thereon is filed with the bill as "Exhibit B." The bill further alleges that the whole of said obligation is still unpaid, except the sum of $17.25 aforesaid; that the said obligation constitutes a vendor's lien upon the said tract of land, &c. The bill makes the said Hayes and Loneberger parties defendant thereto, and no other person or persons, and prays that said tract of land be sold to satisfy the said obligation, and for general relief.

At a circuit court held for the county of Barbour, on the 14th day of April 1869, the defendant Hayes appeared in court, by his counsel, and with the leave of the court, filed his answer to the plaintiffs bill. The answer is as follows:

"The answer of William M. Hayes to the bill exhibited against him and others in the circuit court of Barbour county, by Charles Harmison:

For answer to said bill, respondent says it is true that he purchased from his co-defendant, Loneberger, the land in the bill mentioned, at the price and payable as therein stated, and that all has been paid except the amount remaining due upon said last obligation. Respondent admits also, that a lien was retained upon said land to secure the payment thereof, and that he refused to pay the same to the complainant. The said Loneberger represented to this respondent at the time of said purchase, that he had good title to all of said land, and executed to respondent a deed with covenants of general. warranty for the land, as will appear by the copy of said deed filed with said bill. After respondent's purchase, and after he had paid much the larger portion of said purchase money, he learned that three undivided sevenths of the said land never belonged to the said Loneberger, and were in fact then owned by one William P. Wilson. Respondent declined to pay any more of the said purchase money until said title was obtained, but upon repeated assurances of Loneberger that the said. Wilson had no just claim to said land, and that he would extinguish and remove the same by obtaining a release thereof from Wilson. Respondent was induced to pay, and did pay, all the rest of the purchase money, except the amount remaining unpaid as set up in the bill, which is not more than the actual value of said three-sevenths when compared with the average value of the whole tract. Respondent before the last aforesaid obligation became due, repeatedly warned said Loneberger that unless he would clear his title from the said claim of Wilson, he would withhold sufficient of the purchase money to buy in that claim. Failing continually to do so, respondent finding that Loneberger never intended to do it, purchased the said three-sevenths of said land from said Wilson, at the price of $428.57, or $10.00 per

1877.

Harmison

V.

Loneberger et al.

August Term. acre, which is not more than its fair actual average value. To have lost these three-sevenths, would have almost destroyed the value of the whole tract, and respondent certainly never would have bought the same if he had not thought he was getting the whole title to the land. The manner in which these three-sevenths remained outstanding, was as follows: Isaac Booth, who formerly owned the land, sold one hundred acres of the same to one James England, more than thirty years ago, who paid for the same all the purchase money, took possession of, cleared the land, and resided thereon until his death in 1850. Although entitled to a conveyance of the legal title thereto, no deed was ever executed to said James England for the land. James England died intestate, leaving the following children surviving him, who are his heirs at law, and to whom the said land descended, the naked title still outstanding in Booth, who died in 1858 without ever having conveyed the legal title to any of the heirs of said England. The names of said heirs at law of James England are David England, John England, Jane England, Archibald England, Malinda England, who intermarried with Jacob Able, Rebecca England, who intermarried with Adam Gower and Elizabeth England who intermarried with William Roberts. The said Isaac Booth, several years after the death of said James England, sold the said one hundred acres and other land adjoining the same to said Loneberger, which together constitute the land sold by Loneberger to this respondent. At the time of said sale of said Booth to Loneberger he represented himself as owning the whole of said one hundred acres, having, as he alleged, bought out the interest of the several heirs of James England in said land. Respondent cannot say whether such was the fact or not; he confesses a great desire that the same shall prove to be the case, but from all the facts he has been able to learn, he is obliged to say that the same is not true. He is able to state and declare that the said Malinda Able, Rebecca Gower and Elizabeth Roberts

1877. August Term. Harmison

V.

el

and their husbands, have sold and conveyed their interests in said land to Wm. P. Wilson, and they are the same interests purchased from said Wilson by respondent, and Loneberger et al. are fully worth the balance of said purchase money due to Loneberger. Respondent has recently learned, and he charges the same to be trne, that the said Loneberger has withheld payments of a large amount of the purchase money, to-wit: $159.65 with interest from 1858 or 1859, which he agreed to pay to said Booth for the same defect of title, and his suit for that purpose is still pending and undetermined in this court, of which proper proof, if required, will be offered. All that this respondent ever desired was to be protected in his purchase, and the full benefit thereof secured to him. And having answered, he prays to be hence dismissed with costs."

Loneberger also filed his answer in the cause, which is as follows:

"The separate answer of Jacob Loneberger to a bill in chancery filed in the circuit court of Barbour county against him and others by Charles Harmison.

This respondent, saving to himself the full benefit of all exceptions to said bill for answer thereto, says that it is true as stated in said bill, that this respondent did sell to his co-defendant, Hayes, the tract of land in the bill mentioned at the time therein stated. He further admits that all the purchase money for said land has been paid except the sum of $466.663, as stated in said. bill, and that the sum of $47.25 has been paid upon that. Further answering respondent says, that he believes that three-sevenths of one hundred acres of the land sold by him to said Hayes, did at one time belong to one Wm. P. Wilson, or at least the said Wilson had or professed to have some sort of a title for the said three-sevenths but this respondent utterly denies that the said Wilson now has, or has at any time within the last ten or twelve years had any shadow of title to the said land, or any

1877.

August Term. part thereof. Respondent further says, that the legal

Harmison

V.

Loneberger et al.

title to said land was vested in one Isaac Booth for more than forty years, and was never out of him until he conveyed it to this respondent; that many years ago said Isaac sold the said one hundred acres, out of which said Wilson is now claiming three-sevenths, to one James England; that said James England lived upon said land until he died, and upon his death the same descended to his children; that said Isaac Booth being all the time the owner of the legal title, bought out the interests of all of said England's heirs, except those claimed by said Wilson, and afterwards he bought out all the interests in said land which the said Wilson claimed; that said Booth and Wilson were business men living in the same neighborhood, and had frequent transactions together, and that upon a settlement between them some time about the year 1856, the title of said Wilson to three-sevenths was extinguished by said Booth. This respondent further says, the possession accompanied with the indisputable legal title has been, ever since the year 1851 or 1852, in said Isaac Booth and those claiming under him, a period of seventeen or eighteen years; and respondent is therefore advised that it is too late for said Wilson or said Hayes to shirk the claim set up in said bill, because the statute of limitations presents an effectual bar thereto, upon which this respondent here relies as fully as though the statute of limitations was formally pleaded. This respondent says that after he bought the land, which he sold to said Hayes, from Isaac Booth, he was sued upon one of his notes given for the purchase money, and he did avail himself of this defect in the title, but that long ago he found out that the pretensions of said Wilson were utterly futile and groundless, and that no man knows it better than the said Wilson and his co-defendant Hayes. Having fully answered, this respondent prays to be dismissed hence with reasonable costs."

The plaintiff filed a replication to the answer of said Hayes, as follows. "This repliant re-affirms all the