Shephard v. Little

14 Johns. 210

• Court: New York Supreme Court
• Decided: May 15, 1817
• Status: Published

Opinion

Spencer, J.,

delivered the opinion of the court. The court below proceeded, probably, on the principle, that the assignment contained the written contract of the parties, and that it would be contradicting and varying it, to admit the proof offered. I think they erred, in the application of a well-established rule of law to the case before them.

If a consideration be expressed in a deed of bargain and sale, of the slightest pecuniary nature, it is sufficient; and it may be doubted whether, in an assignment of a leasehold interest under seal, any consideration whatever is necessary.

(a) It certainly is not in a deed of feoffment, accompanied by livery and seisin.

The case of Schermerhorn v. Vander Heyden, (1 Johns. Rep. 139.) is referred to, to show that the court below decided correctly. If that case is well understood, it warrants no such conclusion. The case of Preston v. Merceau, (2 Black. Rep. 1249.) was cited and relied on by the court. In that case it was decided, that parol evidence was inadmissible to prove an additional rent payable by a tenant, beyond that expressed in a written agreement for a lease, and Blackslone, Justice, said, “ Here is a positive agreement that the tenant shall pay 26/.; shall xve admit proof that it means 28l. 12s. 6d. ?” but, he added, as to collateral matters, it might be otherwise; he might show who is to put the house in repair, or the like, concerning which nothing is said ; but he cannot, by parol evidence, shorten the term, or alter the rent.(b) In Maigley v. Hauer, (7 Johns, Rep. 342.) xve refused to admit parol evidence of a consideration of a different nature from that expressed in the deed of com veyance.

The evidence offered in this case steers clear of the principles adopted in the cases cited. ' Here the plaintiff does not attempt to set up a different consideration from that expressed in the deed of assignment. He merely offered to show that it was not paid, and that the amount to be paid him for the assignment was to depend on an event subsequently to happen, to wit, the sale by the assignee of the property assigned.

The foundation of the plaintiff’s suit is, in fact and substance. no other than a claim to be paid the consideration money of the sale of the leasehold interest; and we have recognized the principle, that assumpsit will lie for lands bargained, sold, and conveyed, and in every deed the consideration is specified and admitted to have been paid in hand.

The date of a deed, and whether the consideration was paid or not, are facts open for inquiry, by parol proof. If notes of hand, which are of no higher nature than verbal promises, and are classed among parol contracts, were given for the consideration money of a conveyance of land, could there be any doubt that such notes would be recoverable, where the deed expressed that the consideration was paid in hand ? Yet it is certain that between the contracting parties, you may inquire into the consideration of a note. If so, then you could show that they were given for the land conveyed, and by showing that the consideration was confessed.to be paid by the deed, a recovery would be defeated, by the higher proof arising from the deed. But this is not the case; and though, when one species of consideration is expressed, you cannot prove another or different one, and although you cannot, by parol, substantially vary or contradict a written contract, yet these principles are inapplicable to a case where the payment or amount of the consideration becomes a material inquiry. It is well established, by repeated decisions in this court, that you may explain a receipt for mdney ;(a) and so you may, in that respect, the receipt of money confessed in a deed. (b)

Judgment reversed.

Plowden, 308.

Ses observations on the case of Presten v. Mercean in Phillip's Evid. 437. n

а) Vide Tobey v. Barber, 5 Johns, Rep. 68. Monell v. Lawrence, 12 Johns. Rep. 531. But see Alner v. George, 1 Campb. 593.

In Kip v. Denniston, 4 Johns. Rep. 23 the court held, that where two trustees had executed a conveyance of land, in which was contained a joint acknowledgment of the receipt of the consideration money, it was competent for one of the trustees to show that the whole of the money went into the hands of the other, and thus exonerate himself from liability.