Morse v. Shattuck

4 N.H. 229

• Court: Superior Court of New Hampshire
• Decided: November 15, 1827
• Status: Published

Opinion

Richardson, C. J.

It seems to be well settled as a general rule, that in a court of law when a consideration of money is expressed to have been paid in a deed made for the purpose of conveying land, the law will permit no averment to the contrary. Moor, 569, Fisher v. Smith; Shep. Touch. 223; Phillips Ev. 424.

It has been held in some cases, that, if a particular consideration be expressed in a deed, no other consideration can be averred. 2 P. Will. 203, Clarkson v. Hanway; 1, Johnson, 139, Schemerhorn v. Vanderheyden; 3, do, 506, Hawes v. Barker; 2 W. Bl. 1249; 7, Johnson 341, Maigley v. Hauer; 2 Coke R. 76.

In other cases it has been held that any consideration not inconsistent with that expressed in the deed may be averred ; Phillips evidence, 424—426; 1 Coke Rep. 175, Mildway’s case; 7 Coke R. 133, Bedell’s case.

These authorities may be probably all reconciled by adverting to the different purposes for which an attempt lias been made to shew other considerations than those expressed in the deeds, and to the different species of considerations which have been expressed in the deeds.

It is perfectly well’settled that a consideration expressed in a deed cannot be disproved, for the purpose of defeating the conveyance, unless it be on the ground of fraud. Thus where a consideration of money is expressed in a deed of bargain and sale no averment is admissible, that no money was paid, in order to shew that nothing passed by the deed for want of a consideration of money. 1 Binney, 502, Welt v. Franklin.

But for other purposes the acknowledgement of the receipt of money in a deed may be contradicted. Thus in Kip v. Deniston, 4, Johnson 23, it was decided that where two trustees for the sale of an estate joined in a. conveyance and both acknowledged the receipt of the consideration money but the money went into the hands of one of the trustees, the other was not answerable for the money so received by his co-trustee, and misapplied.

In Shepherd v. Little, 14, Johnson 210, it was decided that where the consideration of a conveyance was expressed in the deed and that it was paid, parol evidence was notwithstanding admissible to show that it was not paid.

So in Wilkinson v. Scott, 17 Mass. Rep. 249, it was decided that an action lay for the grantor of, land against the grantee for part ff the consideration expressed in the deed to have been paid, which the defendant by mistake failed to secure or pay. And Parker, C. J. in that case said, “ A man is estopped by his deed to deny that he granted or that he had a good title to the estate conveyed, bat he is not bound by the consideration expressed, because that is known to be arbitrary and is frequently different from the real consideration of the bargain.”

And we are of opinion in this case that although the receipt of the payment of the consideration expressed in a deed cannot be contradicted for the purpose of defeating the conveyance, yet for the purpose of ascertaining the. damages to which a plaintiff may be justly entitled for the breach of the covenant of seizin in a deed, the true consideration may be shown, notwithstanding a different consideration is expressed in the deed. The plaintiff is therefore entitled to judgment for $100, and interest.