Whitfield, C. J.,
delivered the opinion of the court.
It seems immaterial whether the word “be” or the word “him” be the proper word to be supplied in the blank space of this deed. The deed, at all events, contains an acknowledgment of the receipt of the four hundred dollars; and, whether “be” or “him” be supplied, it would still contain such acknowledgment of payment. But this acknowledgment of payment is, in effect, merely a receipt, and may be contradicted by parol. It was contradicted by parol in this case. The chancellor found as a fact, and we concur in that finding, that nothing had been paid, and the deed may therefore be read as if the recital were as [514] follows on this point: “Witnesseth, that the said party of the first part, in consideration of the sum of four hundred dollars, does by these presents grant, bargain and sell, convey,” etc., “unto the said party of the second part,” etc. Now, this recital plainly states that the land had been sold to the grantee for the consideration of four hundred dollars. The question for solution in this case is, Is this recital a sufficient statement of the terms-of the grant to make applicable the statute of limitations relating to written promises ? The grantee accepted this deed, went into possession under it, and enjoyed the fruits of the property under it. The general principle applicable to this kind of case is clearly stated in Locke v. Homer, 131 Mass., 102 (41 Am. Rep., 199), as follows: “The fact that the agreement of the defendant is contained, not in the bond, covenant, or indenture executed by himself, but in a deed poll made to and accepted by him, affects the mode of declaring, only, and not the extent of his liability. By the law of this commonwealth, affirmed by many decisions, the grantee, by the acceptance of the deed, becomes liable to perform, according to its terms, any promise or undertaking therein expressed' to be made in his behalf; although, not having himself signed the deed, he must, while the old forms of action were retained, have been sued in assumpsit, and not in covenant. Goodwin v. Gilbert, 9 Mass., 510; Fletcher v. McFarlane, 12 Mass., 43; Phelps v. Townsend, 8 Pick., 394; Guild v. Leonard, 18 Pick., 511; Newell v. Hill, 2 Metc., 180; Pike v. Brown, 7 Cush., 133; Braman v. Dowse, 12 Cush., 227; Jewett v. Draper, 6 Allen, 434; McCabe v. Swap, 14 Allen, 188, 192; Maine v. Cumston, 98 Mass., 317; Fenton v. Lord, 128 Mass., 466; Dickason v. Williams, 129 Mass., 182, 184 (37 Am. Rep., 316); Coolidge v. Smith, 129 Mass., 554. See, also, Rogers v. Eagle Fire Co., 9 Wend., 611, 618; Rawson v. Copland, 2 Sandf., ch. 251. Such a promise is not within the statute of frauds, because it is a promise implied by law from the acceptance of the deed, and because it is a promise to pay the promisee’s own debt to another person. [515] Goodwin v. Gilbert and Pike v. Brown, above cited; Alger v. Scoville, 1 Gray, 391; Hubon v. Park, 116 Mass., 541.” To tbe same effect are Schmucker v. Sibert, 18 Kan., 111 (26 Am. Rep., 765); Fort v. Allen, 110 N. C., 191 (14 S. E., 685); Trotter v. Hughes, 12 N. Y., 75 (62 Am. Dec., 137); Atlantic Dock Co. v. Leavitt, 54 N. Y., 39 (13 Am. Rep., 556); Ames v. Robt. Moir & Co., 27 Ill. App., 88. And this is the doctrine of Washington v. Soria, 73 Miss., 665 (19 South., 485; 55 Am. St. Rep., 555). In Fort v. Allen, supra, the court says; “Now, it is true that it is not pvery recital that binds; but, without entering into a discussion of the doctrine of recitals, abounding, as it does, in many refinements and nice distinctions, it is sufficient to say, for our present purpose, that where it is the intent of the parties to place the existence of a fact beyond question, or to make it the basis of the contract, the recital will be effectual, and neither party will be permitted to deny it.”
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Whitfield, C. J.,
delivered the opinion of the court.
It seems immaterial whether the word “be” or the word “him” be the proper word to be supplied in the blank space of this deed. The deed, at all events, contains an acknowledgment of the receipt of the four hundred dollars; and, whether “be” or “him” be supplied, it would still contain such acknowledgment of payment. But this acknowledgment of payment is, in effect, merely a receipt, and may be contradicted by parol. It was contradicted by parol in this case. The chancellor found as a fact, and we concur in that finding, that nothing had been paid, and the deed may therefore be read as if the recital were as [514] follows on this point: “Witnesseth, that the said party of the first part, in consideration of the sum of four hundred dollars, does by these presents grant, bargain and sell, convey,” etc., “unto the said party of the second part,” etc. Now, this recital plainly states that the land had been sold to the grantee for the consideration of four hundred dollars. The question for solution in this case is, Is this recital a sufficient statement of the terms-of the grant to make applicable the statute of limitations relating to written promises ? The grantee accepted this deed, went into possession under it, and enjoyed the fruits of the property under it. The general principle applicable to this kind of case is clearly stated in Locke v. Homer, 131 Mass., 102 (41 Am. Rep., 199), as follows: “The fact that the agreement of the defendant is contained, not in the bond, covenant, or indenture executed by himself, but in a deed poll made to and accepted by him, affects the mode of declaring, only, and not the extent of his liability. By the law of this commonwealth, affirmed by many decisions, the grantee, by the acceptance of the deed, becomes liable to perform, according to its terms, any promise or undertaking therein expressed' to be made in his behalf; although, not having himself signed the deed, he must, while the old forms of action were retained, have been sued in assumpsit, and not in covenant. Goodwin v. Gilbert, 9 Mass., 510; Fletcher v. McFarlane, 12 Mass., 43; Phelps v. Townsend, 8 Pick., 394; Guild v. Leonard, 18 Pick., 511; Newell v. Hill, 2 Metc., 180; Pike v. Brown, 7 Cush., 133; Braman v. Dowse, 12 Cush., 227; Jewett v. Draper, 6 Allen, 434; McCabe v. Swap, 14 Allen, 188, 192; Maine v. Cumston, 98 Mass., 317; Fenton v. Lord, 128 Mass., 466; Dickason v. Williams, 129 Mass., 182, 184 (37 Am. Rep., 316); Coolidge v. Smith, 129 Mass., 554. See, also, Rogers v. Eagle Fire Co., 9 Wend., 611, 618; Rawson v. Copland, 2 Sandf., ch. 251. Such a promise is not within the statute of frauds, because it is a promise implied by law from the acceptance of the deed, and because it is a promise to pay the promisee’s own debt to another person. [515] Goodwin v. Gilbert and Pike v. Brown, above cited; Alger v. Scoville, 1 Gray, 391; Hubon v. Park, 116 Mass., 541.” To tbe same effect are Schmucker v. Sibert, 18 Kan., 111 (26 Am. Rep., 765); Fort v. Allen, 110 N. C., 191 (14 S. E., 685); Trotter v. Hughes, 12 N. Y., 75 (62 Am. Dec., 137); Atlantic Dock Co. v. Leavitt, 54 N. Y., 39 (13 Am. Rep., 556); Ames v. Robt. Moir & Co., 27 Ill. App., 88. And this is the doctrine of Washington v. Soria, 73 Miss., 665 (19 South., 485; 55 Am. St. Rep., 555). In Fort v. Allen, supra, the court says; “Now, it is true that it is not pvery recital that binds; but, without entering into a discussion of the doctrine of recitals, abounding, as it does, in many refinements and nice distinctions, it is sufficient to say, for our present purpose, that where it is the intent of the parties to place the existence of a fact beyond question, or to make it the basis of the contract, the recital will be effectual, and neither party will be permitted to deny it.”
The principle with which we are concerned is this, sharply stated: Is the recital that the grantor conveyed the land to the grantee in consideration of four hundred dollars a sufficient statement of the terms of the contract to make the statute of limitations relating to written promises the only one applicable ? On this precise proposition we quote the following authorities above referred to. In the case of Ames v. Moir & Co. there was an action of assumpsit for goods delivered on an instrument containing the following recital: “Contract. Chicago, June 9, 1870. I have this day bought of Robert Moir & Co., one hundred (100) barrels highwines, ‘iron bound,’ at one dollar and seven cents ($1.07) per proof gallon. [Signed] Wilson Ames.” After reviewing several cases, the court says: “There may be a contract in writing, although it contains no express promise to pay the consideration. Strictly speaking, there is no such express promise in Ames’ contract. But when a state of facts is acknowledged in writing to exist, which imports an obligation to pay, the law implies the obligation, but the contract is not thereby reduced to parol. Ashley v. Vischer, 24 Cal., 322 (85 [516] Am. Dec., 65). Such a contract is found in the passbook of a depositor in a bank. The entries in the book are not express promises to pay, but the law implies such promises, and the liability thereunder has been held not to be barred in five years. Jassoy v. Horn, 64 Ill., 379.” It is clear here that there was no express promise on Ames’ part to pay, but a state of facts was acknowledged in writing to exist, which imported the obligation; but, although the law implied the obligation, the contract was held to be a contract in writing with respect to the statute of limitations applicable. This case covers our case perfectly. There is no express promise on the part of the grantee to pay four hundred dollars, but there is a statement of facts— to wit, that the land was sold for the consideration of four hundred dollars — which statement of facts is acknowledged in writing, and from which statement of facts the law imports the obligation to pay. In such case — the contract terms being thus acknowledged in writing — the statute of limitations applicable to a written promise applies. As stated by Cooper, C. J., in Washington v. Soria; supra: “In either event the promise of the defendant, whether it be express or implied, is to perform a contract, the terms of which are written, and not unwritten. The promise to pay is implied by law, but it is a promise to perform a written, and not an unwritten, contract.” We do not see how words could more clearly express the principle on which we rest our views of this case. The terms of the contract which is to be performed are in writing, acknowledged by the grantee by his acceptance of the deed and in going into possession thereunder. The promise to pay the four hundred dollars is implied by law, but it is the promise to perform the written contract — to wit, that he should pay four hundred dollars for the land conveyed. It is true that in the Washington v. Soria case, supra, the deed recited that the grantee was to pay in installments, but there is no difference, in effect, between the recitation in a deed poll that the grantee will pay a certain sum in installments, he making no written notes to pay, but entering into possession under the deed, [517] and the recital that the grantor in a deed poll has sold and conveyed to the grantee a tract of land for four hundred dollars. There is no written note in either case, but the terms of the contract in one, just as clearly as in the other, import an obligation to pay, and import it in writing. The recital in this deed that the grantor has sold and conveyed this tract of land to the grantee for four hundred dollars is, in substance and effect, the perfect equivalent of a recital that the grantor had sold and conveyed the grantee this tract of land, for which the grantee was to pay the grantor four hundred dollars. In either case the obligation to pay is in writing, and § 2737, Code 1892, applies. The same principle exactly is involved in those cases in which the consideration for a conveyance is an assumption of a mortgage debt. Of that sort of case the court says in Atlantic Dock Co. v. Leavitt, supra: “In Belmont v. Coman, 22 N. Y., 438 (78 Am. Dec., 213), Judge Comstock says: ‘It needs no authority to prove that if, in the conveyance, there are words importing that the grantee will pay the debt, he is deemed to have entered into an express undertaking to do so, although he does not sign or seal the instrument. The acceptance of a deed containing such language is evidence of the most satisfactory kind that he has promised to do what the deed says he is to do.’ ” In Trotter v. Hughes, supra, the recital was this: “And in consideration thereof, John A. Hughes agrees to buy the brick house and two lots of ground, corner of Division and Sycamore streets, for fourteen hundred dollars, the mortgage on it. After-wards a deed was executed in pursuance of the agreement, from which this recital is quoted, by Trotter, the other party to the agreement, to Hughes, which conveyed the two lots mentioned in the contract, and then recites: “Subject, nevertheless, to a certain indenture of mortgage made by Jonathan Trotter and wife, bearing date the 3rd of August, 1837, to Gertrude A. Stryker, to secure the payment of the sum of fourteen hundred dollars and interest, which mortgage forms the consideration money in this deed.” It was held that this recital, “which mart[518] gage forms the consideration money in this deed,” was a sufficient statement of'the terms of the contract to make the statute of limitations appropriate to written promises the only one applicable. It seems to us that the recital in this deed and the recital in the one before us are practically identical. We are, therefore, of the opinion that the court below erred in holding the action barred.
Reversed .and remanded.