Habris v. Harris' Adm'r.

2 Del. 354

• Court: Superior Court of Delaware
• Decided: July 5, 1838
• Status: Published

Opinion

The Court.

The principal point relied on is, that the deed from plaintiff to defendant’s intestate contains a receipt, and acknowledges under the hand and seal of the plaintiff, that he has received the purchase money, which is conclusive.

We admit that the deed is as conclusive in the action of assumpsit as if it were pleaded as a release; but the case before us is one in which the defendant produces a deed, containing an acknowledgment of the receipt of the purchase money; and the rebutting evidence produced, is the written admissions of the defendant in numerous letters, that the purchase money was not paid. Frequent letters before this, requesting plaintiff to send him a deed, and promising payment of the purchase money, one of the letters telling plaintiff if he is afraid to trust defendant with the deed, to send it to a third person. The plaintiff was not afraid to trust him; he sent the deed, and the defendant afterwards paid from time to time parts of the consideration money, and admitted that the balance was not paid. In this country, land is the constant subject of alienation ; and the policy of the law is to facilitate this. The invariable practice is to insert a clause acknowledging the receipt of the consideration expressed, and to take bonds or notes for the purchase money; yet this acknowledgement in the deed has never been set up against such bonds or other securities. We do not deny that the principle of the English law is as stated by Mr. Cullen j but it has been decided otherwise in several of the oldest states of this union, whose judicial decisions are entitled to the highest respect. In New York, Pennsylvania, and in Massachusetts, their courts have established that parol evidence is admissible to contradict the general acknowledgement in the deed. This is a stronger case; the evidence is in writing oft repeated, and cannot admit of any doubt. Confining ourselves at present to the case before us, we instruct the jury that these letters are evidence. (See Stark. Ev. 548; 17 Mass. Rep. 259, Wilkenson vs. Scott.)

Wootten, for plaintiff. Cullen, for defendant

2. The question whether a distributed share may be recovered in general indebtatus assumpsit, is settled by our act of assembly. There is in this declaration a count on an account stated. The party has settled this estate by an account passed before the register. This count is well adapted to meet the proof, and we think, under it the plaintiff may recover the distributive balance due him from his father’s estate.

3. A deed has been presented, which it is said is insufficient, and we agree to it, not because as defendant objected, that the number of acres are not stated, but because there was no acknowledgement and separate examination of the grantee’s wife. But there is evidence of another deed. The letters show an admission that the defendant has received another deed, and he says the two together will Where is the deed? It is not produced ; but the legal presumption is, that the defendant has it. The question then, must be left to the jury to say whether a good deed has been given; they must judge of this from the admissions of the defendant, and his not producing the second deed. If the jury are not satisfied that a valid deed has been given for the land, or not accepted by defendant as valid, they ought to find for him ; but if otherwise; for the plaintiff.

The plaintiff had a verdict