The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1866-02-01

mentioned, ana tnerepy Salu llempheld
Railroad Company became indebted TO
said complainant in the aggregate sum
of $500 of which amount said Compa.
ny had paid S2,0l2 so, which in the
opinion of the Court the complainant
had the right to apply towards satisfac-
tion of the S2275 liqHiGated damages and
had so applied the same, leaving a bal
ance due therefor of S262 So and that
the said complainant has lien upon the
piece of ground on the line of said road
lust westO of the creek and thereinbefore
described, Including so much thereof 8.
is occupied By the said road, for the pay
ment of the sum OF $500, with interest
thereon from the Sth day of March, 1854,
and also has lien upon thatpart ofsaid
road way through the land of complain
ant before described, containing four
acres, three roods and twenty-foHr perch
es, for the sum of 81 ,225, with Interest
thereon from the sth day of March, 1854,
until paid; it was then adjudged, order.
ed and decreed, that the complainant re-
cover against the said Hempfield Rail
Road Company the saidsums OF S262 50,
$500 and ,225, amounting IN the aggre-
gate to the sum of 81 ,7S7 30, with inter.
est thereon from the Sth day Of March,
1854, and the costs CT the said suit and
that unless the said sums of $500 and
Sl,925, with the interest thereon as
aforesaid be paid TO complainant within
twelve months from the date of said de
cree, the Sheriff of Ohio county for the
time being who may act herein by any
one of his deputies, shallproceed to sell
the said property with the appurten-
ances, fixtures and improvements there.
unto belonging, or suficiency thereof
at public auction. to the highest bidder,
at the front door of the Court House for
Ohio county, upon the terms stated in
said decree, and report his proceedings
to the court IN order TO final decree -
By said degree it was further ordered,
that in the event Of the payment Of the
said sums of $500 and 81 ,225, with the in
terest thereon "a aforesaid, at the time
and in the manner thereinbefore de
creed, then the deed OF complainant Tor
said property is 10 be delivered by the
Clerk of said court 10 said Hempfeld
Rail Road Company Petitioners. the
Hempfeld Rail Road Company, respect.
fully show the following errors in said
decree and the proceedings in said cause
upon which tbs founded,
First. That neither in the bill nor in
the deed of Thomas Thornburg TO said
Rail Road Company, nor the testimony, |
nor in said decree, is there any proper or |
sufficient description of the property |
sold by Thornburg to said Company up
on which the. complainant claims lien
for the purchase money and for the sale |
the said cause was prosecuted |
and the decree rendered
Second. That the deed of said Thorn, |
burg filed with the papers is defective,
not only in the description OF the proper.
ty intended to be conveyed, but whilst
signed and sealed by Amanda Thorn.
burg, the wife of said Thomas Thorn
burg. she is not party to said deed, nor
has she properly acknowledged the same
for record
Third. The Circuit Court erred i'll ap
plying the credit of s. OLE 81 exclusively
to the liquidated damages Under the
Of the bill of complainant, |
the said amount should have been ap-
portioned between the 81, l,525, heagreed |
price for the right Of way through COM
plainant's land and the S2275, the
liquidsted damages before mentioned. -
And if the answer of defendants, the
Rail Road Company, respou
sive to the bin and uncontradicted by |
the testimony is to be taken as true |
then the payments amounting to 81 ,302.-
so, or so much thereof as was necessary,
should have been applied to the Satisfac-
tion OF the said two sums Of 5000 and |
81 ,225
Fourth The said decree does not as
certain and determine the title or estate
of said Hempheld Rail Road Company in
and TO the parcels Of land in rho decree
but simply directs their sale
in tho mode aud upon the terms pre-
scribed, when in fact the said Company, |
under the said contract between them |
and said Thornbhrg acquired nothing |
more than the right Of way over and |
upon the lands in question, the title 10
said lands being still IN SAID Thomas
ThOrnburg, subject to the easement or
right Of way granted 10 said Company
Hence, a. the Court Could only sell the |
estate OF interest Of said Company in |
said lands the purchaser at said sale |
could only acquire the right OF way or
easement granted to SAID Company