Brocket v. Foscue.

| N.C. | Jun 5, 1820

said that the defendant contends that the deed, which (66) contains a receipt and a release, cannot be contradicted by parol evidence. The manifest justice of the claim and the unconscientious nature of the defense has made me desirous to ascertain some solid ground of law on which the former can be supported; but I cannot discover how it is to be done without breaking in upon the rule that you cannot by parol contradict a deed.

Two cases have been cited where such evidence has been admitted; but they do not quite come up to this, nor are the reasons for the decision satisfactory. It is truly said that the end of inserting a consideration in a deed is to raise an use, and that the slightest consideration of value is sufficient for that purpose. Still it is not necessary for the same end that a release should be inserted, nor is it, strictly speaking, consistent with the form of a bargain and sale. I may go further and say that the use will arise without an acknowledgement of the receipt of the consideration, as if a man bargain and sell his land in consideration of so much money to be paid at a day to come. Dyer, 337, a. If it be contended that, although you cannot contradict the consideration so far as it is necessary to the efficacy of the conveyance, yet, for any other purpose, it may be done, it ought first to be shown that the only indispensable form of stating the consideration is adopted in this deed. The deed may still be effectual with other modes of stating the consideration by which, if it be not paid at the time, the seller's right to it may be secured and enforced. It might subserve the justice of this case to allow the plaintiff to recover in the face of his deed, but the precedent would be fraught with mischief to the community. The effect of adhering to the rule of law will only be to make men (67) cautious in executing deeds; but if it be understood that a solemn acknowledgement under seal is insufficient to prove the payment of money, it is to be apprehended that many perjuries will arise. To the cases cited at the bar I will add one from5 Mass. 67" court="Mass." date_filed="1809-03-15" href="https://app.midpage.ai/document/borden-v-borden-6403343?utm_source=webapp" opinion_id="6403343">5 Mass. 67, where a deed of tenant in tail purported to be made for good and valuable consideration, but in order to get the judgment of the Court on its effect the parties agreed, in a case stated, that no consideration was paid. Chief Justice Parsons observed that if the parties had not expressly agreed that there was no valuable consideration, it would have been difficult to get over the express averments of the deed. There is also a case to the same effect in 1 Campb., 392. So the judgment must be reversed and a new trial granted.

The Court was unanimous and the judgment was reversed.

Cited: Graves v. Carter, 9 N.C. 580" court="N.C." date_filed="1823-12-05" href="https://app.midpage.ai/document/state-v--simpson-3652545?utm_source=webapp" opinion_id="3652545">9 N.C. 580; Spiers v. Clay, 11 N.C. 26" court="N.C." date_filed="1825-12-05" href="https://app.midpage.ai/document/dozier-v-of-simmons-3646025?utm_source=webapp" opinion_id="3646025">11 N.C. 26;Woodhouse v. Williams, 14 N.C. 510; Lowe v. Weatherley, 20 N.C. 355;Waddell v. Hewitt, 37 N.C. 253; Bruce v. Faucett, 49 N.C. 393;Mendenhall v. Parish, 53 N.C. 106; Shaw v. Williams, 100 N.C. 280;Barbee v. Barbee, 108 N.C. 584.