Low v. Heck , 3 W. Va. 680 ( 1869 )

Maxwell, J.

The appellant claims that the court below erred in dismissing his bill, because the court ought to have directed a reference to inquire what part of the 1,000 dollars which the defendant Heck was to pay appellant in notes had been paid; and because the court should have compelled defendant Heck to produce and file the patents for the Iowa lands, or at least should have required him to prove that patents had issued therefor. The contract shows that 1,000 dollars of the purchase money was to be paid in certain notes at a certain time, and the bill charges that the said notes were not paid according to the contract, or at any Other time, but that Heck paid afterwards, at difierent times, in money, all of the said 1,000 dollars except 484 dollars.

The answer of Heck avers that all of the said sum was paid, and shows the payment of 290 dollars at one time, 40 dollars at another, in addition to what is admitted in the bill, and leaving a balance unaccounted for of 104 dollars. It is insisted here in argument for the appellees, that the allegation in the answer of payment of the entire balance, is conclusive of the payment. Such an assumption is untenable. The sum of 104 dollars, at least, is plainly due the appellant on bill and answer, and it was error to dismiss the bill without providing for its payment.

A 'sufficiently reasonable time having intervened, the appellant, under the terms of the contract, is entitled to have the patents for the 800 acres of Iowa land delivered to him, but the frame of the bill is not sufficient for that purpose; but according to the frame of the bill the defendant Heck ought to have been required to show that patents had issued for that portion of the land for which it is not admitted in the bill that they have issued. The answer of the defendant is not sufficient for this purpose, even if it contained an averment, as it does not, that patents have issued.

I think the decree complained of ought to be reversed, with costs to the appellant, and the cause remanded for further proceedings to be had therein.

The President concurred.

Decree reversed.