Bennett v. Solomon

6 Cal. 134 | Cal. | 1856

The opinion of the Court was delivered by Mr. Justice Terry.

Mr. Chief Justice Murray concurred.

The plaintiff in this case seeks to recover under an assignment of a mortgage, which assignment on its face purports to have been made in consideration of three thousand dollars.

Defendant in his answer averred that the assignment was made without consideration, with intent to defraud the creditors of the assignor, and was therefore void by the statute of frauds. On the trial the consideration was shown to be the marriage of the plaintiff with the assignor.

It is contended by appellant, that the assignment having been attacked as fraudulent, the admission of parol proof to show a consideration other than that expressed on its face, was error, and in support of this position he cites several English and American authorities, in which it is held that a deed attacked for fraud cannot be supported by proof of a different consideration than that expressed in the body of the instrument. On this point, however, the authorities are by no means uniform; the majority of the American cases being opposed to those cited. In McCrea v. Punnot et al., 16 Wend., 460, the doctrine is elaborately discussed; the conclusion at which the Court arrived being, that the consideration clause in a deed can be explained by parol proof. See 11 Wheat., 199; 7 Pick., 533; 12 Pick., 557; 3 Watts, 151; 1 Rand. 219; 2 Call., 103; 12 John.; 6 Vt., 426.

Cowen and Hill, in their notes on Phillips’ Evidence, part 2, page —, after commenting on the English decisions say, “ The English decisions therefore, whatever may be said of their dicta, do not appear to have gone beyond the point of disallowing proof to show a consideration of a different species, so as thereby to change the nature of the deed; for instance, where under such circumstances a deed imports a bargain and sale merely, and the consideration mentioned is disproved or turns out so entirely inadequate as to raise the presumption of fraud, it shall not be supported by proof that it was intended to operate as a voluntary conveyance.” Here the consideration proven is of the same species as that mentioned in the assignment.

But although the authorities are conflicting as regards the admissibility of such evidence to support deeds or solemn instruments under seal, I am not aware of any case in which it has been held that the consideration of the assignment of a personal chattel or chose in action, may not be proven by parol, and a different one established than that expressed in the instrument.

Under our system a mortgage is a mere incident to the debt which it is given to secure; to vest the plaintiff with the absolute ownership and control of it, no formal assignment was necessary; the simple endorsement and delivery of the promissory note was sufficient to carry with it the mortgage which was its incident.

It will not be questioned that the consideration for making or endorsing a promissory note may be gone into at any time, and there can be no reason for adopting a more stringent rule as to the incident.

The judgment of the Court below is affirmed with costs.