Maigley v. Hauer

7 Johns. 341

• Court: New York Supreme Court
• Decided: February 15, 1811
• Status: Published

Opinion

Per Curiam.

It is a settled rule, that where the consideration is expressly stated in a deed, and it is not said also, ánd for other considerations, you cannot enter into proof of any other, for that would be contrary to the deed. This was so decided by this court in Schermerhorn v. Vanderheyden, (1 Johns. Rep. 139.) and again in Howes v. Barker, (3 Johns. Rep. 506.) The same rule prevails in equity according to the cases of Clarkson v. Hanway, (2 P. Wms. 203.) and of Peacock v. Monk, (1 Vesey, 127.) and the remedy for the party, if the deed be contrary to the truth of the case,' is by seeking relief in equity against the deed, on the ground of fraud or mistake, as was intimated in the case of Howes v. Barker; and as was adopted in the case of Filmer v. Gott, (7 Bro. P. C. 70.)

If the proof as to the consideration arising from the sale of the farm be put out of view, there was no consideration at all for the promise to maintain the defendant in error. It was a mere nudum pactum, and the verdict in each cause was contrary to law, and the judgment in each cause must be reversed.

Judgment reversed.