Fitzpatrick's Adm'r v. Harris

8 Ala. 32 | Ala. | 1845

COLLIER, C. J.

Ia Saunders v. Hendrix, 5, Ala. Rep. 224, it was held, that an acknowledgement in a deed, of the amount paid as the consideration of the conveyance of land, was in legal effect a mere receipt, and as much open to explanation as if indorsed on the back of the deed. So in Mead v. Steger, 5 Porter’s Rep. 498, we determined, that where a monied consideration is expressed in a deed, it is allowable to show the consideration to have been greater or less than that stated; for the reason that it is not usual to state it with precision. The principle deducible from these cases, does not deny the admissibility of a deed, to show the consideration paid by the grantor to the grantee, it merely affirms its inconclusiveness as evidence. That it would be competent in the present case, as against Whitman, to show the amount which the purchasers paid him, if an action were brought for breach of warranty, we apprehend would not be disputed; although it would be allowable for the vendor to prove that it did not recite the consideration truly. And we think it good evidence against the vendees, not only in favor of the vendor, but as between themselves, upon the ground that they were both present when it was executed, and received it, without any objection to the correctness. This conclusion, we think, results from the familiar rule, that silence on the part of one, when a fact is affirmed, which is calculated to elicit a denial, if untrue, shall be construed into an implied and virtual admission. [Batturs v. Sellers, 5 H. & Johns. Rep. 119; Coe v. Hutton, 1 Sergt. & R. Rep. 398; Hendrickson, Adm’r, v. Miller, 1 Const. Rep. 296; Vincent v. Huff’s lessee, 8 Sergt. & R. Rep. 381; Wells v. Drayton, 1 Const. Ct. Rep. 111.] See the cases collected on this point in Cowan & Hill’s Notes to Phillips’ Evidence, 2 vol., 191 to 199, 213.

We place our conclusion on this point upon the ground, that the vendor and vendees were all present when the money was paid and the deed delivered, and .the fair inference is, that it was read to, or by them all, so that all were informed of its contents, and if untrue in any recital,, Ñp'uld most probably have so stated. This doctrine as to implied.- or virtual admissions, we are aware, has been denied with r.fegard to statements in writing, other than accounts; that isjtyvhere those statements are riot subjects of conversation between the parties, or not delivered in person, but are sent from one- to the other at a distance. [2 C & H.’s Notes, 2 Phil. Ev. 195.]

In respect to the refusal to instruct the jury as prayed, as also in the charge given, we think the Court ruled correctly. It is a rule of unquestionable authority, that where a party presents an account to his debtor, in whi'f?|' are stated both debits and credits, the latter shall not claim. :‘tbe benefit of the credits, without also submitting to the debits. •' .The Court merely affirmed such to be the law. [2 C. & H.’s Notes to Phil. Ev. 227 to 230.]

The order of the Orphans’ Court is therefore affirmed.