Field v. Turner

1 Del. Cas. 150, 1797 Del. LEXIS 23

• Court: Delaware Court of Common Pleas
• Decided: May 3, 1797
• Status: Published

Opinion

Bassett, C. J.

I think the receipt in a deed, of consideration is not binding upon the grantor, somewhere in Term. (I suppose 3 Term 475.)

Per Curiam. Bassett, C. J.,

after some deliberation. A majority of the court are of opinion that the plaintiff cannot give this evidence. As the difference arises on my part I shall give my opinion. I think the Act of Assembly does not prohibit the giving any evidence relative to lands that is to be performed in one year. This contract was to have been performed immediately and so within the year. I ground my opinion upon the case in 3 Burr. 1281. (!!! vide the words of the Act and the Statute and 1 Pow.Con. 276, 1 Vern. 159.) ¹ My brethren are not of my opinion and therefore the evidence cannot be given. No matter what the subject of the Act of Assembly is I think it relates to a performance within a year.

Bill of exceptions was taken by plaintiffs. Chief Justice Bassett refused to sign it because he thought with plaintiff, and it was held by the Court and Bar not necessary that he should, the seals of a majority of the judges being sufficient.

Verdict taken for defendant without opposition.

[Then follows, Wilson’s Bed Booh, 173, the above-mentioned bill of exceptions.]

Action of assumpsit. Narratio, pleas, and issues.

And now, to wit, in the trial of this cause the plaintiff by his counsel produced in evidence a deed poll from Levin Derickson, Commissioner, and so forth, to Margaret Kollock, dated November 6, 1780, conveying to the said Margaret Kollock three several lots in the town of Lewis in consideration of £173, prout the said deed. Also a certain instrument in writing under the hand and seal of Margaret Kollock de- ' daring certain uses concerning the said several lots, dated 29 of June, 1780. Also a certain indenture between Margaret Kollock of the one and Isaac Turner of the other part, bearing date 6th of May, 1785, prout the said written instrument and indenture, and thereupon the said plaintiff by his said counsel offered to prove by Phillips Kollock, Esq., the agreement between Nehemiah Field and Isaac Turner as stated in the narratio and that in part execution of the said agreement, the defendant paid half the consideration money to the said Nehemiah Field and was put immediately in possession of the lot or parcel of ground in the narratio mentioned, upon which the defendant built a dwelling house which he has occupied ever since. Whereupon it was objected by the counsel for the defendant that the said evidence was incompetent to prove the agreement between the plaintiff and defendant relative to the sale of the lot or parcel of ground in the narratio mentioned, and therefore that the testimony of the said Phillips Kollock ought not to be admitted for that purpose, and it was then insisted by the counsel for the said plaintiff that the said objection was not sufficient in the law to exclude the said witness in manner as contended by the defendant’s counsel, and thereupon the opinion of the Court in the premises was prayed, and the said Court did upon advice order and adjudge in and upon the said premises, that the testimony of the said Phillips Kollock should not be admitted to which opinion of the court the plaintiff by his counsel doth except, and prays, the benefit of this exception, according to the provision of the Statute in such case made and provided, and that the said Justices would to this his exception affix their hands, and seals etc.

(Seal)

Kensey Johns (Seal)

Daniel Rodney (Seal)

1 Wilson’s punctuation.