Murphy v. Branch Bank at Mobile , 16 Ala. 90 ( 1849 )

DARGAN, J.

It is clear that the claimant and all the parties to the deed are estopped from denying that Dossey, the grantor, was the owner of the slaves, at the time the deed was executed. But as the deed conveyed the legal tille to the claimant, the question is, whether lie can be permitted to show, by parol proof, that the deed was not voluntary, but was executed on a valuable consideration, which is not expressed in it. The consideration expressed in the deed is, the anxiety of the grantor to provide for his wife, and one dollar, in cash paid. The parol proof was, that the slaves belonged to John Murphy, the father of Mrs. Dossey, and were delivered to the husband, on the condition that he would convey them to a trustee, for the sole use of his wife, and that the deed was executed in pursuance of this trust It is certainly established by the authorities refered to by the plaintiff, that on this evidence, a court of equity would have decreed the husband to convey the slaves, for the sole use of Ms wife, in pursuance of the trust on which he received them. Bishop’s heirs v. Bishops heirs, 13 Ala. Rep. 475. And where one receives property upon a promise made by him to convey it in a particular manner, a court of equity will decree its conveyance in accordance with the prcfmise. Kennedy’s heirs v. Kennedy’s heirs, 2 Ala. 596: Sledge’s ad’rs v. Clopton, 6 Ala. 589. Iij therefore, a bill bad been filed to compel the execution of the trust assumed by Dossey, at the time the slaves were delivered to him, a court of equity would have been compelled to have decreed its execution, not only as against him, but also as against his creditors. The deed however, is silent as to this trust, which was created in favor Mrs. Dossey, by the delivery of the slaves to her husband, and we are now to determine whether this proof can be considered in a court of law, to show that the deed is not voluntary.

The general rule is too well established now to be shaken, that a consideration not expressed in a deed, and which is inconsistent with the consideration expressed cannot be shown by parol proof. 1 Greenl. Ev. §§ 285; Mead v. Steger, 5 Porter, 498; 5 Stewart and Porter, 410. If, however, there is no consideration expressed, proof may he received to show what the consideration was. 1 Vesey, 128; 15 Mass. Rep. 92. And it is said, if a deed mentions a consideration, and adds the words for other considerations, that proof may be received to show what those other considerations are. Bo if a monied consideration is expressed, proof may be received to show that the sum was greater or less than the amount expressed in the deed. But the authorities deny that parol proof can be received to establish a consideration wholly different from that expressed in the deed. Garrett v. Stewart, 1 McCord, 514; Starkie Ev. 1004; 5 Porter, 506; 1 Johns. Rep. 139, Here the deed sets out the consideration on which it purports to have been executed, to wit, the anxiety of the-grantor, to provide for his wife, and one dollar, in cash paid. The proof would establish that the deed was executed in conformity with an undertaking entered into by Dossey, at the time the negroes were delivered to' him. This is a consideration entirely different from that mentioned in the deed, and parol proof cannot be received to establish it, without violating the well settled rules of evidence.

At law, therefore, we must hold the deed voluntary, and if the rights of Mrs. Dossey can be protected, it must be done by an application to a court of chancery, to reform the deed and establish the trust created in her favor, at the time the-slaves were delivered to her husband.

Let the judgment be affirmed.