Thompson Beach v. Packard

| Vt. | Jan 15, 1838

The opinion of the Court was delivered by

Collamer, J.

Parol evidence cannot be admitted to vary; contradict, add to or control a deed or written contract. /The deed of bargain and sale, between these parties, had for its object the- conveyance of certain land ; and the extent of the land conveyed, the parties thereto, the estate conveyed thereby, and the covenants attending it, could not be affected by parol proof; and even-that part, which relates to the consideration, or the payment thereof, could not be contradicted or varied, by parol, so as in any way to affect the purpose of the deed, that is, its operation as a conveyance. All this is well settled law, and fully sustained by the authorities cited by the defendant’s counsel. But the question still remains, when this acknowledgment of payment, under seal, comes collaterally in question, not for any purpose of affecting the conveyance of the lands, ( or raising any trust or interest therein-, does ány such rule of estoppel apply.? The expressions from Sheppard’s Touchstone, and a large part of the authorities, relied on by the defendant’s counsel, are all in relation to the inadmissibility of the parol proof, as to the ■ Consideration, to affect the deed, and create thereby a resulting trust, Or convert the conveyance into a covenant to stand séized, to the use of the grantor.

It has long been holden in England, and in this country, and even in this State, that receipts may be varied or contradicted by parol, as they are not contracts. If it may be so done aá to a written receipt, we do not see why the same may not, as consistently, be done with one under seal. The evidence dbes not vary, control or affect the contract as a tonvéyatite, and it was only so far as the consideration was essential to give effect to the deed, as an absolute conveyance, in fee, that what is said on that subject is any part of the deed. For all that purpose, it remains unaffected when the evidence is offered, only to prove that the consideration money has not actually passed to the grantor, merely to enable him to recover the same.

• When a man conveys land, he generally receives his pay, in part at least, in promises or assurances. He executes and delivers the deed, and so far as to induce him to make the conveyance, he has “ received the pay, to his full satisfaction and he must abide by his 'conveyance, whether he ever actually realizes the money on such assurances or not. But when he attempts to enforce such promises, whether they be by writing, such as notes of hand, or by parol, as in the present case, to hold that the acknowledgment of payment, in his deed, is conclusive agaihst him, and settles, not Only that he was satisfied to make the conveyance, bn* tJiat he" received his pay ; and if, in promises o» contracts, that they too must have been paid, is e:,iilS to this acknowledgment an artifical effe^i beyond its design. This parol evidence w»°, merefore, correctly "admitted. This view of tito case is fully sustained by the cases of Bullard v. Briggs, 7 Pick. R. 537. Wilkinson v. Scott, 17 Mass. 249" court="Mass." date_filed="1821-09-15" href="https://app.midpage.ai/document/wilkinson-v-scott-6404978?utm_source=webapp" opinion_id="6404978">17 Mass. R. 249. Shepherd v. Little, 14 Johns. R. 210, which we think not overbalanced by the case of Steel v. Adams, 1 Greenleaf’s R. 1.

In relation to the rejection of Packard, as a witness, that point ib fully sustained by the case of Lapham v. Curtis, 5 Vt. R. 381.

The receipt in the deed, like any other receipt, changes the burthen of proof, and requires the grantor, not only to prove the sale of the land, but to prove the same was still unpaid for ; and so the Judge correctly charged the jury in this case. It is complained, that he did not give the jury more particular instructions as to the weight of the evidence, and how explicit or express it should be. That is mere matter of judicial discretion, the neglect or performance of which cannot be assigned for error.

- The only question, which remains, relates to the rejection of the testimony offered by the defendant. It is not questioned that this testimony was rightly rejected, provided the facts were settled on which the refection was made; but it ... J . is insisted that the court was not competent to 'settle these facts- If those facts, or the evidence to support them, were disputed, the evidence of the defendant should have boon admitted and the whole then put, under proper instructions, to the jury. If the court refused so to do, but rejected the defendant’s testimony, the bill of exceptions should state, not that these preliminary facts appeared, but merely, that there was testimony tending to prom them. In this case, the record states, that such facts appeared. Now, we must take this as here stated, that is, that of these facts there was no dispute or that it was so conceded. If so,, then the course taken by the court was unexceptionable.

Judgment affirmed.