certained the true number of acres contained in said tract, they tendered the purchase money for same, with its accrued interest, and demanded a deed for same from defendant, which said defendant declined; and plaintiffs pray a specific execution of said contract.

Upon the calling of this cause, on the 13th day of March, 1886, the defendant moved to dismiss the same for want of jurisdiction, which motion the court overruled; and defendant also moved the court to compel the plaintiff D. E. Johnston to answer question No. 3, propounded to him on cross-examination by defendant, in his deposition in this cause, and also to compel H. W. Straley to answer questions Nos. 8 and 9, propounded to him by defendant's attorney on cross-examination, in his deposition taken in this cause, and the court, regarding said questions impertinent, irrelevant, and immaterial, refused to compel said answers, and thereupon the defendant obtained leave to file a demurrer and his answer to plaintiffs' bill, which demurrer was set down for argument, and the plain- | tiffs replied generally to the answer aforesaid, and said cause was transferred to Summers county. The defendant, by his answer, denied every material allegation in the plaintiffs' bill contained, and especially any attempt to deceive or defraud the plaintiffs in regard to the number of acres of coal contained in said home tract, claiming that, being ignorant of the locality of the lines and corners of said tract, he employed a man by the name of Belcher, who professed to be acquainted with said lines and corners, to go with said surveyor, Welch, and point them out, which he attempted to do, and said Welch cursed him, and refused to be guided by him, and declared he would run said land by the pa. pers in his possession; and the defendant claims that, after he was advised that said surveyor had left out said strip of land not included in the survey made by him, he informed said David E. Johnston about the matter, and asked him if he knew he was going to take the strip of land supposed to have been left out of the survey made as aforesaid, and said Johnston replied he would not take it, as it might get the defendant into trouble over it some time; that when said 50-acre tract was surveyed it was found to contain only 42 acres, and that 7% acres was all the land in said tract not covered by said supposed Witten claim, and when defendant executed the deed for said 7% acres said Johnston positively refused to accept a deed for the balance of said tract, to-wit, 34% acres, or to pay him for the same, and it was then and there understood between the parties that the plaintiffs would have nothing to do with said tract, or the 34% acres claimed by said Witten. The defendant further alleges that the plaintiffs were apprised of the fact, long before the bringing of this suit, that there were 22 acres more of land in the surveys made by said Welch when they were trying, as they allege, to effect a settlement of the 19 39-100 acres by tendering the amount of purchase money, as they claim; and they never mentioned the fact that there had been a mistake in the survey of said Welch of 22 acres, when they well knew

that said mistake had been made. The defendant also claims that the plaintiffs purchased an adjoining tract, known as the "McNutt Tract," and that, in having the same run off, they embraced in the boundary thereof said 19 39-100 acres above mentioned, and afterwards sold said McNutt tract for a much larger price than the adjoining lands; and, being unable to make a good title for said strip of land, they are now seeking to obtain a title for said land, for which they declined to receive a deed when the other portion of said home tract was conveyed, after they have admitted the contract to be fully complied with, by accepting a deed drawn by themselves, for a tract of land surveyed by their own surveyor, who fully apprised them as to all the facts in regard to said boundaries.

Several depositions were taken and filed in the cause by plaintiffs and defendant; and on the 25th day of February, 1887, the court proceeded to enter a decree in this cause, directing that the plaintiffs pay to the defendant, George W. Perdue, or to B. L. Hoge, general receiver of the court, the amount of $3 per acre, with accrued interest, for the 41 39-100 acres of the home tract of land in the bill and proceedings mentioned, and the further sum of $3 per acre, and accrued interest, for the 34% acres of the Mill creek tract mentioned in the bill and proceedings in the cause, amounting at the date of said decree to $267.14, and directed that, upon payment of said sums of money, George W. Perdue should execute and file among the papers in the cause a deed, in which his wife should unite, conveying to plaintiffs the coal under the 19 39-100 acres of land mentioned in the plaintiffs' bill, which constitutes part of said George W. Perdue's home tract, and that said deed should convey such timber, and contain such covenants of title, and provide for such privileges, as are provided for in the title-bond from defendant to plaintiffs, filed, as Exhibit A, with their bill, and that said defendant, upon the payment of the purchase money therefor, as aforesaid, should convey to plaintiffs the coal under said 34% acres of land by deed, with covenant of special warranty of title, which he should file among the papers of the cause, and, upon his failure so to do, directing a special commissioner therein appointed to make said deeds of conveyance, following the terms of said title-bond; and from this decree the defendant applied for and obtained an appeal to this court, and supersedeas to said decree.

Upon the question raised as to the jurisdiction, the circuit court committed no error in sustaining jurisdiction, as the provision in the Code providing that suits may be brought in any county in an adjoining circuit, if the judge of the circuit court be interested in a case which, but for said interest, would be proper for the jurisdiction of his court, is merely cumulative, and does not prevent the case from being heard by another judge, in the circuit in which the defendant is presiding as judge. The demurrer was properly overruled.

There can be no question as to the sale made by the defendant, George W. Perdue, on the 14th day of December, 1881, by writ

ten contract of that date, of all the coal in the tract known as the "Home Tract," with the exception of 25 acres thereof, expressly reserved, or that by the same agreement he sold all the coal in another tract, in the tract conveyed to him by Zachariah Perdue, situated on the head branches of Mill creek, both of which tracts are situated in Mercer county, and that the plaintiffs became the purchasers thereof for the price of three dollars per acre. It however appears that in surveying said home tract, for the purpose of properly describing the same, the surveyor, although furnished by the plaintiffs with the courses and distances, and aided by the defendant and one Belcher, who claimed to have known the tract for years, from his refusal to be guided or directed by the defendant or said Belcher as to the locality of the lines and corners, did not include a strip of 19 39100 acres in said survey which should have been, and which belonged to, and was a part of, said home tract. Said Belcher, in his deposition, after stating that he informed Surveyor Welch that a corner of said land was in the head of "Broad Hollow," was asked: "In surveying your land, and what surveying Capt. Welch did for Mr. Johnston and Straley, did he make the survey by what the owners of the land had to say about the lines, or did he rely on the papers and deed to make the survey correctly?" in his answer describes said surveyor's conduct in the following unique and graphic language: "He was just like some old bull looking through a brier patch. Whichever way he wanted to go, that was the way he went." The plaintiffs, in their bill, allege that at the time they paid to defendant the purchase money for said coal, and took the deeds aforesaid, and surrendered said title-bond, they then believed they had paid for all the coal embraced in their said contract made with defendant on the 14th day of December, 1881, except that claimed by W. S. Witten out of the 50-acre tract, until, a few months before the bill was filed, they incidentally heard that the defendant was offering to sell the coal in and under a parcel of some 19 acres, part of defendant's home tract, -and that he claimed to not have conveyed said parcel of 19 acres to the plaintiffs. The defendant, in his answer, denies this allegation, and claims that the surveyor, J. A. Welch, agent of plaintiffs, informed the plaintiffs-at least H. W. Straley, one of the plaintiffs-about the 19 39-100 acres left out of said survey, and he himself talked with D. E. Johnston about it, and for that reason said Johnston refused to have a deed made for it. Upon the question, then, in regard to notice, that said 19 39-100 acres was not included in the survey made by Welch, or embraced in the deed, the plaintiffs, having the affirmative, must preponderate. Upon his question, while it is true that the plaintiff David E. Johnston, in his deposition, states that he was not aware that said 19 39-100 acres had been left out of the survey made by Welch, and conveyance made by G. W. Perdue, until a short time before this suit was brought, and H. W. Straley, in his deposition, states that he did not know or discover that said 19 39-100 acres were left out as

aforesaid until about 12 months after the deed was delivered to plaintiffs by said G. W. Perdue, yet, on the other hand, George W. Perdue and Silas Perdue both swear that when said deed was delivered to the plaintiff David E. Johnston he asked said Johnston if Capt. Welch had plotted in this strip adjoining the McNutt land, that he left out of his first survey, and "he told me he had not. I asked him if he would have it plotted in, and include it in the deed, and his answer was: 'We had better not. It might get you into trouble."" And Silas Perdue swears that he was present when said deed was delivered, and confirms said George W. Perdue as to the conversation had with said David E. Johnston in regard to said 19 39-100 acres. And J. A. Welch, the surveyor, when asked, "At the time you made the survey of said land, a plat of which you say you delivered to H. W. Straley and others, what impression had you as to the correctness of the same, and what representations, if any, did you make to said Straley and others as to the correctness of said survey and map?" answered: "I was not satisfied about it, from the fact that the white oak and chestnut oak called for, 'one hundred poles from the fallen sour-wood,' was not found; and when Caswell branch was reached, without changing the bearing from the fallen sour-wood, and having no information as to which of the several small streams or hollows entering Caswell branch, which seemed to me to be too small to be designated by name, (I have given local names to several branches much larger than the one now called 'Broad Hollow,') I called Mr. Straley's attention to it; and there were so many questions growing out of the great number of surveys which were made and reported upon. I do not remember that I ever had any additional instructions about the matter." And when H. W. Straley was asked, on cross-examination: "Capt. Welch states, in his deposition given in this case, that he apprised you of the trouble about the east line of the Perdue tract after it was surveyed by him. Is that statement true or false?" answered: "I have no recollection that he ever said anything about it to me till after I heard that G. W. Perdue had offered the disputed piece for sale." Upon the question, then, as to notice to the plaintiffs that this 19 39-100 acre strip was not included in the survey made by said Welch before said deed was made and delivered by the defendant, George W. Perdue, if the witnesses be entitled to equal credit,-and no good reason appears in the record why they should not, the preponderance of the evidence is clearly with the defendant.

The plaintiffs, as to the allegation in their bill that the defendant prevented said 19 39-100 acres from being included in said survey and conveyance, either by fraud or mistake, and that it was accomplished by the defendant, whether willfully and fraudulently, or mistakenly, by stopping the surveyor short, on a given line of said survey, of the true and proper corner, and running off at right angles, by which the 19acre parcel was left out or excluded from said survey and calculation of quantity must also assume the affirmative, and pre

ponderate in the testimony; but when we refer to the evidence of the parties who accompanied said surveyor, and heard his declarations and witnessed his conduct, it appears that be cursed those who proposed to give him any information in regard to the lines and corners, and told them he was running by the papers, and the evidence discloses the fact that the papers referred to were the courses and distances which had been copied by plaintiffs, and furnished to him, and the evidence shows that he was in no manner controlled, guided, or deceived by any person who attempted said survey; and said surveyor Welch, whose testimony was taken in the cause, does not pretend that he was misled or deceived by any one in regard to the lines and corners of said survey. H. D. Belcher, who was present, states that he was unable to find the corner in Broad hollow, although he had helped to run the survey before, but showed him a point within 10 or 15 steps of where the corner has since been found; but said surveyor went back to a point where he had made a corner, and run through towards Caswell's branch, and, when asked by said Belcher to run in another direction, he said: "No. The company had furnished him courses, and he had to run by them." It cannot, then, be claimed that this surveyor was misled by any person, or in any manner deceived by representations made to him as to the locality of said lines or corners.

It may have been intended, and no doubt was, to include in the survey made by said Welch the entire home tract of said G. W. Perdue, with the exception of the 25 acres reserved, including the buildings and springs; but the evidence shows that after said 19 39-100 acres had been left out of said survey, and the plaintiffs had notice of said omission, for some reason, best known to themselves, the plaintiffs declined to include said 19 39-100 acres in the deed of conveyance from George W. Perdue to themselves, and when the matter was brought to their attention, about the time the deed was ready to be delivered, the plaintiff Johnston told the defendant: "We had better not do that. It might get you into trouble." It appears that the plaintiffs had executed and acknowledged a deed for the McNutt tract a few days before the deed from George W. Perdue was acknowledged and delivered, and the plaintiffs D. E. Johnston and H. W. Straley both state that they sold said 19 39-100 acres to George M. Bartholemew, trustee, with and as part of the McNutt tract; said Straley stating that the 19 39-100 acres referred to laps on the B. G. McNutt land. It may have been considered by the plaintiffs that the McNutt title, which they had already acquired, was the better. At any rate, the weight of the evidence shows that for some cause the plaintiffs declined, when their attention was called directly to the omission of said strip, to have the same included in said conveyance, and surrendered the title-bond to the defendant. In the case of Ballard v. Ballard, 25 W. Va. 471, this court held that a written contract for the sale of land may be rescinded by a subsequent parol agreement, but, to make such agreement effectual, it must have been fully executed,

and be established by clear and conclusive proof. In the case under consideration, the agreement, so far as said 19 39-100 acres was concerned, was certainly rescinded. The plaintiffs declined to include it when their attention was called to it; and the deed was executed and delivered, omitting to convey said strip, and the titlebond was surrendered. What more could have been done to fully execute the rescission of the contract as to said 19 39-100 acres? In the case of Glass v. Hulbert, 102 Mass. 24, which was a case somewhat similar to this, the defendant made a conveyance of land to the plaintiff not actually including a certain lot, of 17 acres, which defendant had represented, and plaintiff had been led to believe, to be covered by the deed. By a proviso in the deed, plaintiff assumed the burden of maintaining a line fence, being induced to consent to the proviso by false representations of the defendant in regard to the amount of fence which his neighbors would be obliged to maintain. Part of the purchase money for the land was paid in government bonds, the defendant agreeing to take them at par, and pay the interest and premium; and there was a considerable sum due the plaintiff thereon. By a bill in equity the plaintiff prayed that the defendant be compelled to convey the additional 17 acres, to release plaintiff from the proviso, and to pay the amount due on the bonds. Held, that the conveyance prayed for could not be decreed; that the remedy relating to the proviso and to the bond was adequate at law; and that, as the plaintiff did not offer to rescind the whole contract, there was no remedy in equity. And in the case of Minor v. Edwards, 12 Mo. 137, it is held that "an acceptance of a deed of inferior value to such a one as the grantee is by his contract entitled to, as a compliance with such a contract, is equivalent to a waiver of such better title. See Phelps v. Seely, 22 Grat. 573; Hil. Vend. c. 10, § 19, p. 173; also, Dearborn v. Cross, 7 Cow. 48; Baldwin v. Salter, 8 Paige, 473; and Jarrell v. Jarrell, 27 W. Va. 743.

If any evidence was wanting as to the intention of the defendant George W. Perdue to sell the coal under his land at three dollars per acre, and that he had no purpose of excluding any portion of his coal in said land from sale, it is found in the fact that on the same day he executed and delivered a deed for the coal under the home tract he also executed and delivered a deed to plaintiffs for the 25 acres he had reserved around his house. The evidence in the case clearly indicates to my mind that the parol agreement to rescind was not only made, but fully executed, as to the 19 39-100 acre tract.

As to the 50-acre tract, on Mill creek, it appears that there were but 42 acres of it, and, on account of a claim set up to a part of it by one Scott Witten, which the plaintiff Johnston regarded as a better title, he declined to accept a deed for more than 7% acres of that tract; and for that amount a deed was made and accepted, which waived and rescinded the former agreement.

For these reasons the decree rendered in this cause on the 25th day of February,

1887, must be reversed, and the plaintiffs' bill dismissed, and the appellees must pay the costs of this appeal.

SNYDER, P., and BRANNON, J., concurred. GREEN, J., absent.

MAYHEW et al. v. CLARK. (Supreme Court of Appeals of West Virginia. Nov. 20, 1889.)

FRAUDULENT CONVEYANCES-HUSBAND AND WIFE -BURDEN OF PROOF.

S. E. C., being, in November, 1874, the owner of one-half interest in a lease of certain lots of land located in Ritchie county, W. Va., in which some oil-wells had been bored, and also certain fixtures and personal property appertaining thereto, and being at the time indebted, assigned said leasehold property and fixtures, etc., to B., his wife's brother, and in consideration therefor B. executed to him his three notes for $2,000 each, one of which was afterwards changed into four notes, two of which were for $666.66% each, and the remaining two for $333.33% each, and as a further consideration B.was to pay to G. a debt owed by C. of between $3,000 and $4,000. On the 12th of February, 1875, B. assigned said interest in said leasehold property to L., a cousin of H. M. C., the wife of C., and on the same day L. assigned said property to said H. M. C., the wife of C., receiving the notes which B. had executed to C. in consideration therefor, which notes L. turned over to B., which notes said H. M. C. swears she received from her husband, C., without consideration. At the expiration of said lease a new lease was executed to H. M. C. on said property by the grantor in said original lease, without any consideration moving from said H. M. C. but for certain valuable considerations furnished by her husband. In a controversy between the creditors of the husband and the wife as to the right to subject said property to the payment of debts contracted by the husband before said assignment to B., held: (1) The burden of proving said assignment to B. was for a valuable consideration, and, bona fide, devolves upon the wife. (2) A voluntary conveyance will be declared fraudulent as to subsequent creditors, if, from the circumstances and other evidence, the court is convinced the deed was made with intent to defraud such creditors; and, the conveyance being voluntary, it is immaterial whether the grantee had notice of such fraud. (3) A case in which the facts proven are such as to lead to the conclusion that the transfer of the husband's property to his wife's brother, and from him to his wife's cousin, and thence to his wife, without consideration, was made with fraudulent intent, and was void either as to existing or subsequent creditors.

(Syllabus by the Court.)

Appeal and supersedeas from circuit court, Ritchie county.

John A. Hutchinson and Okey Johnson, for appellant. W. N. Miller and Van Winkle & Ambler, for appellees.

the sum of $678.04, with interest thereon from the 15th day of October, 1875, being the amount of a negotiable note, and charges of protest thereon, which was made in the state and city of New York on the 13th day of August, 1875, by G. F. H. Betts, payable to the said S. E. Clark 60 days after the date thereof, for value received, and which the said S. E. Clark, on the day and at the place last aforesaid, in the regular course of business, and for val. uable consideration, indorsed by signing his name on the back thereof, and delivered to the said firm of J. H. Carrington & Co., and the said firm afterwards, at the place and on the day last aforesaid, for a valuable consideration, and in regular course of business, indorsed their firm name on the back thereof, and delivered the same to plaintiffs, who thereupon became the holders and bona fide owners thereof. That said note was duly presented and protested at maturity, and that no part of the same has been paid. That said S. E. Clark was a non-resident of this state, but that she had some property in this state, in the said county of Ritchie, consisting of certain leasehold interests in certain real estate, for the purpose of operating the same for the production of oil therefrom. One parcel of said land was leased by him from the West Virginia Oil & Oil-Land Company, a corporation, (describing the same,) which lease was for the term of 10 years from the date thereof, and that said Clark had entered on said real estate, and was then in possession thereof, operating the same for oil, and had obtained several wells thereon, and was producing some oil therefrom, and that said Clark also had the undivided one-half interest in and to four several lots of land in the said county, with the wells, machinery, tools, and fixtures thereon situated, known as lots 2, 3, 4, and 5, on Whitwood run, which were leased by said West Virginia Oil & Oil-Land Company to one R. W. Gilchrist on the 7th day of December, 1870, for the term of 10 years from the date thereof. That on the 13th day of September, 1870, the said R. W. Gilchrist assigned and transferred to said S. E. Clark an undivided one-half interest in said lots of land, and that said Gilchrist and Clark bored and obtained several valuable wells thereon, and put and placed valuable machinery and fixtures thereon, and that said Clark had a one-half interest in all said property, and the oil produced from said well, and that, by the terms of a partnership agreement between said Gilchrist and Clark, Gilchrist was to have entire control of the business, and Clark was to receive from time to time the net proceeds of said property in oil or money. They also claim that they have sued out an attachment in said suit, which has been levied upon said lot or parcel of land leased by said com

ton and Henry A. Carrington, the last two partners as J. H. Carrington & Co., James M. Lemon, and R. W. Gilchrist, in which the plaintiffs claim in their original bill that said G. F. H. Betts, S. E. Clark, and James H. Carrington, and Henry A. Carrington the last two partners, (lately,) doing business as J. H. Carrington & Co., are jointly indebted to the plaintiffs in v.10s.E.no.21-50

said owned by him in connection with said Gilchrist, and also his interest in the personal property thereon located. That on the 27th day of November, 1874, said Clark made a pretended sale of his interest in the said property owned by him jointly with said Gilchrist to said G. F. H. Betts, and in said assignment he recites that he, said Clark, was indebted to said Gilchrist in the

sum of $3,953.11, and said assignment was made for the professed consideration of $8,000, and the payment by Betts of the said sums of money due from said Clark to Gilchrist, or so much thereof as the latter should be unable to collect from the West Virginia Oil & Oil-Land Company, which was also liable to said Gilchrist for said money. That on the 12th day of February, 1875, the said property theretofore assigned by said Clark to him, was assigned to one James M. Lemon, for the purpose of securing, as recited therein, three notes that had theretofore been made by said Betts, two of which were for $2,000, and the other for $2,046.89, but said assignment did not state to whom said notes were executed; but plaintiffs claim that they are informed and believe they were executed to said Clark, as the professed consideration of the assignment by him to Betts, or a part thereof, and that said assignment provided that, if the said Betts should fail to pay the said notes, or either of them, at maturity, the said assignment was to become an absolute assignment of said interest to said Lemon for the payment of said notes, and the same were to be given up to him, said Betts, and that on the same day the said James M. Lemon, for the nominal consideration of one dollar, transferred said agreement, and all his right, title, and interest in said property, to Harriet M. Clark, the wife of said S. E. Clark, and on the 19th day of May, 1875, said Betts assigned said interest in said property to said H. M. Clark, in consideration of the surrender to him of the notes mentioned in said assignment by him to Lemon, which assignments were acknowledged and recorded in the county of Ritchie, and that said Betts did not pay any of said notes mentioned in his assignment to said Lemon at maturity, and that said three assignments were only a contrivance of the said Clark to cheat and defraud his creditors. That none of them were bona fide transactions. That the only consideration received by Betts for the assignment to Lemon was the surrender of the notes which he had given to Clark, and which said Clark owned and controlled at the time of the assignment by Betts to Lemon, and that said H. M. Clark gave no consideration to the said Lemon, Betts, or S. E. Clark for the assignment of said property to her, but that said assignment was contrived by said Clark with the intent, and for the purpose, of defrauding his creditors, and that said Clark managed and controlled his interest in said property during the whole time, receiving the rents, issues, and profits thereof to his own use and benefit. That at the time said Clark indorsed the note aforesaid he claimed to be the owner of said property with said Gilchrist, and carefully concealed from plaintiffs and said Carrington & Co. that he had made an assignment thereof, and plaintiff took said note partly on the credit of said Clark, created by the ownership of said property. That in the contract between said Clark, Gilchrist, and Betts a lien is given said Gilchrist in the interest of said Clark in said property, to secure to Gilchrist the payment of a sum of money due from Clark to him, part of which has been paid. That said Clark has

no other property than that mentioned in the plaintiff's bill, and at the time of said assignment to his wife he was indebted to insolvency. That his said property is considerably incumbered, and plaintiffs had caused it to be attached in a suit at law in said court for the amount of note for $1,221.95, executed by said Clark to said Carrington & Co., and they pray that said several assignments may be declared void as to plaintiffs, and that said Clark's interest in the property owned by him jointly with said Gilchrist may be sold to pay the said debt, after paying what may still be due said Gilchrist, and that his other property therein mentioned may be sold also for the payment of said debt, and that said Gilchrist might be enjoined from delivering to said Clark any further rents and profits from said wells owned jointly by them.

The defendants S. E. Clark and H. M. Clark demurred to plaintiff's bill, and also filed their joint and separate answer to the same, in which they admit the making and indorsement of the note in the bill mentioned and described, but deny that it was duly or properly protested. They also deny that S. E. Clark is the owner of the several lots on Whitewood run, mentioned and described in Exhibit D with the bill, but claim that said property is the sole and separate property of H. M. Clark, his wife. They admit the partnership with Gilchrist in producing oil, but claim that it ceased with the transfer to G. F. H. Betts. They admit the several assignments mentioned in the bill, but deny that the same was any contrivance on the part of S. E. Clark to cheat and defraud his creditors, and claim that S. E. Clark was not a debtor of plaintiffs at the time said assignments were made. They deny that H. M. Clark has no control over the rents of said property, and claim that her husband, S. E. Clark, was appointed by her as her agent to manage the same, and that ever since the assignment said business has been transacted openly. They disclaim any concealment on the part of said S. E. Clark, but claim that plaintiffs had notice of said transfers. They deny the insolvency of S. E. Clark at the time of said transfers, or that the liens on said property are greater than its value, and said H. M. Clark claims that she was a bona fide owner for value of the interest in said Whitwood run property. On the 10th of November, 1881, the plaintiffs filed an amended bill, in which, in addition to the matters contained in their original bill, they claim that at the October term, 1878, they obtained a judgment against S. E. Clark for $1,221.95, with interest from April 30, 1876, and $48.30 costs, and a judgment on the order of attachment in said action, and an order of sale of the leasehold interest granted to said S. E. Clark by the West Virginia Oil & Oil-Land Company by deed dated January 3, 1876, for the term of 10 years, and the undivided half interest in the Gilchrist lease, and the personal property therein mentioned; but plaintiffs agreed with said Clark not to sell the lastmentioned property until the controversy in relation thereto should be decided in this suit, and at the April term, 1878, of said