13 Mo. 151 | Mo. | 1850
Perman Henderson brought an action of covenant against the executors of his father, John Henderson, upon a deed of bargain and sale executed by the latter to the former, conveying a certain tract of land in Platte county. The deed contained the words “grant, bargain and sell,” and a covenant of general warranty. The receipt of $766, the consideration of the sale, was acknowledged in the deed.
The breach of covenant assigned was the incumbrance of the dower of John Henderson’s widow (the said John having died after the execution of the deed), and this incumbrance was alleged to be worth two hundred dollars, which was accordingly paid to the said widow by the plaintiff.
Upon the trial the defendant introduced evidence, the tendency and object of which was to prove that there was no consideration passing from John Henderson to his son, the plaintiff for this conveyance — that in reality it was merely designed to remove an obstacle which the retention of the title by the fhther was supposed to present to the allowance of a pre-emption which he had in view — and that upon the accomplishment of this purpose, it was understood and agreed by both parties that the deed should be canceled or the title re-conveyed. To this evidence the plaintiff objected; but it was permitted to come in and the plaintiff took an exception to the ruling of the court. Instructions were given, but they are not preserved on the record. The defendant had a verdict and judgment.
The only question which the record presents is the one growing out of the admission of the defendant’s testimony. How far-the ordinary clause in a deed, acknowledging the receipt of the consideration money, ought to preclude all parol evidence to show the real consideration, either as to amount or character, is a question upon which the decisions have not been uniform.(
The purpose really aimed at by the testimony in this case was probably to show a resulting trust in the grantor, and thereby defeat the action entirely. This is a privilege which strangers, whose interests are affected by the deed, are allowed, but between parties and privies, such testimony is inadmissible. Parties and privies are not permitted to allege their own fraud as a ground for varying or avoiding a deed. Belden v. Seymour, 8 Conn. R. 812.
It will be readily observed, that the principle upon which this case turns cannot be affected by the accidental circumstance, that the grantee is one of the heirs of the grantor, and by means of the fraud gets advantage over his co-heirs, which neither the law of distribution, nor the grantor’s will designed. The grantor and his son, the grantee, were both participators in the fraud, and its object was to enable the grantor to defraud the government of the United
(a) A deed which does not express a money consideration, may he sustained as a deed of bargain and sale by proof of the consideration — Perry v. Price, 1 Mo. K. 553. A failure to pay a nominal consideration cannot be shown to defeat a deed — Draper v, Short, 25 Mo. R. 197; Dickerson v. Desire’s Adm’r, 23 Mo. R. 151. See post, p. 271.