Daggett, J.
1 think the record offered in evidence by the plaintiff, ought to have been admitted. The law, in Connecticut, has always been understood to be, that when the grantee, or any tenant was sued in ejectment, for all or any part of the land conveyed, and a title to which was warranted to him, by the covenants in a deed, he might vouch or summon his warrantor to appear and defend the title. This is effected, by a citation, signed by a magistrate, served and returned to court, and thus to become part of the files of the court. The person vouched in, by this process, might appear or not, at his election. If he did not appear, and there was a recovery against a grantee, or any person claiming under him, the judgment might be given in evidence to prove the plaintiff's damages, in an action on the covenant: if he did appearand make defence, and there was a recovery against him, that judgment would be strong, if not conclusive evidence against him in such action. If the ware rantor undertook the defence voluntarily, without a summons to defend, the law is the same. This practice is founded on the common law, though unlike it in its tedious forms, and still [309]*309more tedious delays. In all real actions, the tenant might vouch in the warrantor. In default of the vouchee, or if he appeared and a recovery was had, by the demandant, the tenant had judgment for equal lands. 5 Cruise’s Dig. tit. 36. chap. 3. sect. 1, 2, 18, 19, 26. 14 Petersdorff 326. 4 Dane’s Abr. 487. 490. 2 Wms. Saund. 32. n. 1. In Connecticut, the grantee is obliged to resort to his covenants; and he recovers damages instead of lands.
This would appear very clear. It is said, however, that the suit was not against Belden, but against Thompson and Mrs. Dimock; and therefore, Belden is, in no sense, party. Now, the fact is, Belden was the only person in interest: the defendants were merely nominal parties; and therefore, it is, in substance, as though Belden, (the present plaintiff) had been defendant alone: and that this condition may be shewn to be his, by other evidence than the record, is proved, abundantly, by the authorities. Chirac & al. v. Reinicker, 11 Wheat. 280. S. C. 2 Pet. 614. Peake’s Ev. 40. Case v. Reeve & al. 14 Johns. Rep. 79. Adams on Eject. 233. Doe d. Locke v. Franklin, 7 Taun. 9. The court will always take notice of the real parties.
It is further said, that it does not appear, by this record, nor can it appear, without extrinsic evidence, that the title which is warranted by the defendants, was drawn in question on this trial. This record is not offered as conclusive evidence in favour of the plaintiff, or as an estoppel to the defendants to shew that they had title to the land in question, and that they therefore shall be concluded by the recovery. To conclude them, and to estop them from averring the truth, it must appear from the record, that the same question between the same parties, was put in issue and decided. Outram v. Morewood, 3 East, 346. Smith v. Sherwood, 4 Conn. Rep. 276. This record is offered as a judgment of a court of competent jurisdiction, in which the question of title was settled against the defendants; and though it cannot estop the defendants, for the reason given above, yet it furnishes strong evidence against them. This is shewn, by the cases cited above, and also by the following authorities. Gilb. L. Ev. 35. Kitchen & al. v. Campbell, 3 Wils. 304. Blasdale v. Babcock, 1 Johns. Rep. 517. Seddon v. Tutop, 6 Term Rep. 607. Betts v. Starr, 5 Conn. Rep. 550. Goddard v. Selden, 7 Conn. Rep. 515.
This action was in favour of Chenevard against Thompson [310]*310and Dimock. The defendants were cited, by the plaintiff, to appearand defend his title. They did appear. If the defence had been successful, they might have availed themselves of the verdict and judgment, in any action brought by the plaintiff against them, on the covenant. It is equally clear, that it might have been set up as a defence, in any future action, brought by Chenevard against him, or his tenant in possession. As their defence did not prevail, why should not the plaintiff avail himself of the verdict and judgment? If a man brings ejectment, in the name of another, as his lessee, he is considered as the real plaintiff, and the verdict may be given in evidence for or against him, in an action of ejectment brought in the name of another plaintiff on his demise. Gilb. L. Ev.
The record, then, was improperly rejected. It ought to have been admitted; though it would not conclude the defendants.
2. There is another ground for a new trial presented by this motion. The plaintiff offered proof, that the consideration paid for the land was 2800 dollars. This proof was objected to, on the ground, that the consideration expressed in the deed, was only 1800 dollars. The proof offered was a copy from the record of the court of probate, containing a return of the sale of the land in question, under the hands of the defendants, and pursuant to the order of the court, shewing that it was sold for 2800 dollars. It was rejected, on the ground that the consideration expressed in the deed must controul; and that a greater or further consideration could not be shewn. This evidence, also, I think, should have been admitted.
It is not suggested, by those who oppose the admission of this proof, that any case directly in point can be found. Certain analogous cases, however, are resorted to. Let us examine them.
The case of Schemerhorn v. Vanderheyden, 1 Johns. Rep. 139. was an action of assumpsit. No consideration was stated for the promise. On the trial, the consideration attempted to be shewn, was, that the defendant had promised to purchase a desk for the plaintiff’s wife, in consideration of an assignment of personal property made to him, and that the assignment, when produced, shewed a consideration of natural love and affection, and of a certain bond executed by the defendant. The sole question was, whether the delivery of the desk could be shewn as an additional consideration to those expressed in the [311]*311assignment. It was decided, that such testimony was inadmissible. That, certainly, was not this case; and it is, at best, but a dictum in support of quite another point.
The next case cited is that of Howes v. Barber, 3 Johns. Rep. 506. 509, 10. There, it was decided, that where lands were sold for a certain number of acres, at a certain price per acre, mentioned in the deed, and the purchase money paid, and the number of acres fell short, an action for money had and received could not be sustained. This was like the cases of Bradley & al. v. Blodget, Kirby 22. Northrop v. Speary, 1 Day 23., except that in both those cases, there was a parol promise made at the time of the execution of the deeds, to rectify the mistake, if any should appear on mensuration. Our courts treated these promises as within the statute of frauds and perjuries. The supreme court of New-York say, that these mistakes could only be corrected by a court of chancery.
In Maigley v.
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Daggett, J.
1 think the record offered in evidence by the plaintiff, ought to have been admitted. The law, in Connecticut, has always been understood to be, that when the grantee, or any tenant was sued in ejectment, for all or any part of the land conveyed, and a title to which was warranted to him, by the covenants in a deed, he might vouch or summon his warrantor to appear and defend the title. This is effected, by a citation, signed by a magistrate, served and returned to court, and thus to become part of the files of the court. The person vouched in, by this process, might appear or not, at his election. If he did not appear, and there was a recovery against a grantee, or any person claiming under him, the judgment might be given in evidence to prove the plaintiff's damages, in an action on the covenant: if he did appearand make defence, and there was a recovery against him, that judgment would be strong, if not conclusive evidence against him in such action. If the ware rantor undertook the defence voluntarily, without a summons to defend, the law is the same. This practice is founded on the common law, though unlike it in its tedious forms, and still [309]*309more tedious delays. In all real actions, the tenant might vouch in the warrantor. In default of the vouchee, or if he appeared and a recovery was had, by the demandant, the tenant had judgment for equal lands. 5 Cruise’s Dig. tit. 36. chap. 3. sect. 1, 2, 18, 19, 26. 14 Petersdorff 326. 4 Dane’s Abr. 487. 490. 2 Wms. Saund. 32. n. 1. In Connecticut, the grantee is obliged to resort to his covenants; and he recovers damages instead of lands.
This would appear very clear. It is said, however, that the suit was not against Belden, but against Thompson and Mrs. Dimock; and therefore, Belden is, in no sense, party. Now, the fact is, Belden was the only person in interest: the defendants were merely nominal parties; and therefore, it is, in substance, as though Belden, (the present plaintiff) had been defendant alone: and that this condition may be shewn to be his, by other evidence than the record, is proved, abundantly, by the authorities. Chirac & al. v. Reinicker, 11 Wheat. 280. S. C. 2 Pet. 614. Peake’s Ev. 40. Case v. Reeve & al. 14 Johns. Rep. 79. Adams on Eject. 233. Doe d. Locke v. Franklin, 7 Taun. 9. The court will always take notice of the real parties.
It is further said, that it does not appear, by this record, nor can it appear, without extrinsic evidence, that the title which is warranted by the defendants, was drawn in question on this trial. This record is not offered as conclusive evidence in favour of the plaintiff, or as an estoppel to the defendants to shew that they had title to the land in question, and that they therefore shall be concluded by the recovery. To conclude them, and to estop them from averring the truth, it must appear from the record, that the same question between the same parties, was put in issue and decided. Outram v. Morewood, 3 East, 346. Smith v. Sherwood, 4 Conn. Rep. 276. This record is offered as a judgment of a court of competent jurisdiction, in which the question of title was settled against the defendants; and though it cannot estop the defendants, for the reason given above, yet it furnishes strong evidence against them. This is shewn, by the cases cited above, and also by the following authorities. Gilb. L. Ev. 35. Kitchen & al. v. Campbell, 3 Wils. 304. Blasdale v. Babcock, 1 Johns. Rep. 517. Seddon v. Tutop, 6 Term Rep. 607. Betts v. Starr, 5 Conn. Rep. 550. Goddard v. Selden, 7 Conn. Rep. 515.
This action was in favour of Chenevard against Thompson [310]*310and Dimock. The defendants were cited, by the plaintiff, to appearand defend his title. They did appear. If the defence had been successful, they might have availed themselves of the verdict and judgment, in any action brought by the plaintiff against them, on the covenant. It is equally clear, that it might have been set up as a defence, in any future action, brought by Chenevard against him, or his tenant in possession. As their defence did not prevail, why should not the plaintiff avail himself of the verdict and judgment? If a man brings ejectment, in the name of another, as his lessee, he is considered as the real plaintiff, and the verdict may be given in evidence for or against him, in an action of ejectment brought in the name of another plaintiff on his demise. Gilb. L. Ev.
The record, then, was improperly rejected. It ought to have been admitted; though it would not conclude the defendants.
2. There is another ground for a new trial presented by this motion. The plaintiff offered proof, that the consideration paid for the land was 2800 dollars. This proof was objected to, on the ground, that the consideration expressed in the deed, was only 1800 dollars. The proof offered was a copy from the record of the court of probate, containing a return of the sale of the land in question, under the hands of the defendants, and pursuant to the order of the court, shewing that it was sold for 2800 dollars. It was rejected, on the ground that the consideration expressed in the deed must controul; and that a greater or further consideration could not be shewn. This evidence, also, I think, should have been admitted.
It is not suggested, by those who oppose the admission of this proof, that any case directly in point can be found. Certain analogous cases, however, are resorted to. Let us examine them.
The case of Schemerhorn v. Vanderheyden, 1 Johns. Rep. 139. was an action of assumpsit. No consideration was stated for the promise. On the trial, the consideration attempted to be shewn, was, that the defendant had promised to purchase a desk for the plaintiff’s wife, in consideration of an assignment of personal property made to him, and that the assignment, when produced, shewed a consideration of natural love and affection, and of a certain bond executed by the defendant. The sole question was, whether the delivery of the desk could be shewn as an additional consideration to those expressed in the [311]*311assignment. It was decided, that such testimony was inadmissible. That, certainly, was not this case; and it is, at best, but a dictum in support of quite another point.
The next case cited is that of Howes v. Barber, 3 Johns. Rep. 506. 509, 10. There, it was decided, that where lands were sold for a certain number of acres, at a certain price per acre, mentioned in the deed, and the purchase money paid, and the number of acres fell short, an action for money had and received could not be sustained. This was like the cases of Bradley & al. v. Blodget, Kirby 22. Northrop v. Speary, 1 Day 23., except that in both those cases, there was a parol promise made at the time of the execution of the deeds, to rectify the mistake, if any should appear on mensuration. Our courts treated these promises as within the statute of frauds and perjuries. The supreme court of New-York say, that these mistakes could only be corrected by a court of chancery.
In Maigley v. Hauer, 7 Johns. Rep. 341. it was decided, that where there is a consideration expressed in the deed, without saying “for other consideration,” proof of any other consideration is not admissible ; and if the consideration is not truly stated, it can only be corrected in a court of equity.
It is not easy to see, that any or all of these cases, prove, that a greater sum of money may not be shown to have been paid, than is expressed in the deed; and that is the only point now under examination. This proof was not of the lowest kind. It was a copy of the return of sale, made under the hands of the defendants, in performance of their trust as administrators.
I will now advert to some other decisions and principles, which sustain the opinion here expressed. In Villers v. Beamont, Dyer 146. it was holden, that where in a deed of bargain and sale, the consideration of 70Ɩ. was expressed, without m-m tion of any other consideration, the jury had well found, that the deed was in consideration of marriage as well as 70Ɩ.
In Hatch & al. v. Straight, 3 Conn. Rep. 31. it was decided, by this Court, that five dollars expressed as the consideration of a deed, was merely nominal, and that such consideration was not sufficient to repel the presumption that the deed was given by way of advancement to a son. Here, assuredly, the consideration, like the case in Dyer, was explained.
In Phill. Ev. 482, 3. the rule is stated to be, “that a panv may aver another consideration, which is consistent with the consideration expressed; but no averment can be made c[312]*312ontrary to, or inconsistent with, that expressed in the deed.” Having examined several cases on this subject, the author adds, “ that the cases referred to in the text appear to have established, that it is not considered to be contrary to or inconsistent with a deed, to prove another consideration in addition to the consideration expressed.” Here, the proof offered was only to a greater consideration, and in no way inconsistent with that expressed.
It is, moreover, the settled doctrine of the courts in Great Britain to sustain an action of assumpsit for the price agreed to be paid for land, notwithstanding the consideration is expressly admitted to have been received, by the usual clause in deeds, “ the receipt whereof is hereby acknowledged.” The form of the action is given by Chitty, in his work on Pleadings. The principle is every where undoubted, that such a clause in a deed has the effect to prevent a resulting trust in the grantor. He is forever estopped to deny the deed for the uses therein mentioned ; and this is its only operation. 1 Swift’s Dig. 121. The same doctrine is established, by repeated decisions, in the supreme court of New-York. Thus, it was settled in Shepherd v. Little, 14 Johns. Rep. 210. and Bowen v. Bell, 20 Johns. Rep. 338. In the former case, Ch. J. Spencer considers the acknowledgement in a deed, though under the hand and seal of ithe grantor, as standing on a footing with receipts, which may be explained by parol testimony. This principle is also recognized in this state. 1 Swift’s Dig. 121. 571. Now, it is beyond my comprehension, that this receipt of the consideration may be thus explained, or rather disproved, and yet that the amount of consideration may not be shewn to be different from what is expressed in the deed. The principle, upon this hypothesis, must be, that the grantee may prove that no consideration at all has been paid, and yet cannot prove that a part only has been paid ; and that a grantee may prove in this action of assumpsit, that 1000 dollars was the consideration, and that he is indebted only to that amount, when the grantor insists that he owes 2000 dollars, as appears by the deed.
We free ourselves from all difficulty, by considering the origin and purpose of this acknowledgement, viz. to prevent, as above expressed, a resulting trust in the grantor, and that it is merely formal or nominal, and not designed to conclusively fix the amount, either paid, or to be paid. Suppose a deed were expressed to be in consideration of five dollars : is it to be said, [313]*313that five dollars only was to be paid; and is that sum to be conclusive upon the parties in all events? They are, indeed. precluded from denying a consideration; but no further are they precluded. In the first volume of Root's reports, there are three decisions directly to the point, that assumpsit will lie for the price of the land sold ; and that the consideration expressed in the deed may be explained or contradicted. Clark v. Brown & ux. 1 Root 77. Hannah v. Wadsworth, 1 Root 458. Cone v. Tracy, 1 Root 479. These decisions are all cited, with approbation, by the Chief Justice, in Sparrow v. Smith 5 Conn. Rep. 113. 117. The same doctrine has been recently pronounced in Massachusetts in Webb v. Peele, 7 Pick. 247. and Ballard v. Briggs, 7 Pick. 533. In the latter case, Ch. J. Parker, in giving the opinion of the court, says: “The consideration proposed to be proved, is different from that expressed in the deed; and it is objected, that the deed is conclusive upon this point; but we think it has been reasonably settled, that this matter is open to evidence. More or less than is expressed in a deed may be proved, by parol evidence, as the consideration; and even a different consideration, if valuable, may be proved. A deed is valid in law with any consideration, however small.” In Morse v. Shattuck, 4 N. Hamp. Rep. 229. the doctrine was established, that in an action on the covenant of seisin in a deed, a different consideration from that expressed in the instrument, might be shewn, by parol evidence, to ascertain the damages.
In view of these principles and authorities, I think it very clear, that the proof offered ought to have been admitted; and that there must be a new trial.
Peters and Williams, Js. were of the same opinion.