26 Ala. 563 | Ala. | 1855
—The action was on a covenant of warranty of soundness, in a sealed bill of -sale of a slave. The consideration expressed in the instrument was eight hundred and fifty dollars; and parol evidence was admitted to show, that the real consideration was not money, but another slave. The action of the court in this respect is the ground of the first assignment .of error.
In England it is settled, that the recital of the consideration money in a deed, in the absence of fraud, is conclusive upon the parties upon all questions arising out of the instru»
The general course of reasoning of the cases to which we have referred, is, that the amount, or character of the consideration, does not, when the deed itself is not attacked, affect its operation as to the estate conveyed, and is therefore not properly to be regarded as of the essence of the instrument, but is rather 'to be assimilated to its date, or such other recitals as have no bearing upon its effect; to which the attention of the party is not supposed to be particularly directed, and to which, therefore, the principle of estoppels, in its strickness, does not apply. All the cases concede, that the clause has the effect of preventing a resulting trust in the grantor, and that so far as it was intended by the parties to pass a right, they are concluded by it; and, also, that it is prima facie evidence of the consideration. In some of the cases to which we have referred, the general doctrine is established, with the qualification, that the explanation must be confined
.Referring the decision in the case of Brown v. Maltbie to the admitted principle, that the clause is not to be inquired into for the purpose of changing the character of the instrument, and adopting the general doctrine of the American courts, that the consideration is not conclusive, the question is, whether, where the deed expresses a moneyed consideration of value, any other valuable consideration than money can be shown. On this question, the embarrassment which has been introduced into the cases arises, as we think, principally, from the want of precision and accuracy in the language of judges and text-writers. Mr. Phillips, for instance, in his work on Evidence, (3d American ed., vol. 2, p. 369,) speaking of the consideration of a deed being thrown open to inquiry by fraud in its execution, says, “ in that case the party will not be allowed to prove any other consideration”; and he refers to Clarkson v. Hanway, 2 P. Wms. 203, and Watts v. Grove, 2 Sch. & Lef. But, on looking into these cases, it will be found, that in the first, the consideration attacked purported to be valuable, and the one offered to support the deed was a good consideration merely ; and in the other case,
Upon the other question there is no difficulty. The exchange of the slaves — the one in consideration of the other — was one transaction; and that being the case, if the covenant of soundness in relation to the slave received by Carter was broken, he had the right to recoup the damages arising from the breach, against those which the other party complained of.—Hill v. Bishop, 2 Ala. 320; Hatchett v. Gibson, 18 Ala. 587; Batterman v. Pierce, 3 Hill (N. Y.) 171.
Judgment affirmed.