Wolfe v. Hauver , 1 Gill 84 ( 1843 )

Archer, J.,

delivered the opinion of this court.

The first question which arises in this case is as to the admissibility of parol evidence to show that the consideration acknowledged in a deed to have been paid, has not in fact been paid. Much contrariety of decision prevails in the various courts upon this question. The later English cases appear to be decisive against the admission of such testimony; while in this country the weight of authority is the other way. In Ohio, Kentucky, South Carolina, Pennsylvania, New York, Connecticut, New Hampshire and Massachusetts, the acknowledgment of the receipt of the consideration money in a deed has been held to be only prima facie evidence. While in North Carolina, Alabama and Maine, such acknowledgment is considered as an estoppel and conclusive. In our own State the decisions have been contradictory.

In the General Court, at May T. 1796, suit was instituted by O'Neale against Lodge, on a covenant for the sale of land, and the defendant relied on a receipt in the body of the deed given by the plaintiff to the defendant, and also on a receipt endorsed on the deed, acknowledging the receipt of the consideration money, as conclusive evidence of payment. The court, however, decided it was evidence of the lowest order, because it was but the mere formal part of a deed, and it was every day’s practice to have a receipt on the back of a deed, when, perhaps, nine times in ten there was not a shilling paid. In 1802, in the case of Dixon vs. Swiggett, which was an action of indebitatus assumpsit for land sold, the same court determined that the plaintiff could not give any parol evidence to prove the non-payment of the consideration money, contrary to his express acknowledgment of it on the face of the deed. This question was again raised in this court in the year 1827, in the case of Higdon and Thomas, 1 Harr, & Gill, 139. There an action was instituted by Higdon against the defendants, on a contract for the sale of lands. The plaintiff offered in evidence the contract, and proved the execution and delivery of a deed to the defendant, in which the consideration money was acknowledged to have been received, and proved that the defendant had, after the conveyance, entered into the possession of the lands conveyed; whereupon, the defendant moved the court to instruct the jury, that the plaintiff; upon the evidence offered by him, was not entitled to recover. Had the receipt in the deed operated as an estoppel upon the plaintiff, or furnished conclusive evidence of the payment of the purchase money, the direction prayed was the law of the case, and the plaintiff would not have been entitled to recover. So that the question was directly raised in the case, and it was decided by this court upon the authority of the American cases, that the receipt in a deed was only prima facie evidence of the payment of the purchase money. Since that period, we are not aware of any case which has not conformed to it. Certainly none have occurred in this court, and the subordinate tribunals, it is to be presumed, have yielded obedience to it. It would seem to be too late at this day, to agitate again this question, which we must consider as firmly settled as any other which could be presented to our consideration.

In the case of Gully and Grubbs, 1 Marshall, 388’9, 390, the court say “they believe the consistent doctrine, and that which accords best with analogy, and with the practice and understanding of mankind, is that the acknowledgment in a deed of the receipt of the consideration, is only prima facie evidence of payment. The acknowledgment is inserted more for the purpose of showing the actual amount of consideration, than its payment, and it is in general inserted in deeds of conveyance, whether the consideration has been paid or agreed to be paid. If the consideration had not been paid, such an acknowledgment in a deed would be intended to mean that the specified amount had been assumed by note or otherwise. With these views we accord.” It is a familiar principle that receipts acknowledging the payment of money may be explained or contradicted. This constitutes an exception from the general rule giving a conclusive effect to written evidence, and it has been properly said, that the exception was introduced for the general security and convenience, to protect mankind from fraud. If the receipt or release in the deed is to operate as an estoppel, or to be considered as conclusive in its character as evidence, how could promissory notes, taken for the purchase money of land, be recovered? If they remained in the hands of the vendor, he would be estopped by his deed which acknowledged payment for the consideration money. Nor could there be any recovery on any parol contract, in writing, for the consideration money, if a deed acknowledging the payment had been made. To this extent the doctrine would seem to lead inevitably.

The determination of this court in Wesley and Thomas; Stockett and Watkins; Beits and The Union Bank, and Hum and Soper, will, as we apprehend, be found to have no bearing on this question. These were cases in which efforts were made to change the character of deeds, or to vary the consideration stated in the deeds, and thereby either to alter their nature and character, or to maintain a deed impeached for fraud, by setting up a different consideration from that stated on the face of the deed. But in the case before us, the introduction of the evidence proposed to be offered, neither changes nor affects any right transmitted in the property conveyed by the deed; it operates no change in the legal character of the instrument, nor in any manner affects injuriously any part of the deed as a conveyance. The receipt of the purchase money is no necessary part of the deed, as it would, in every respect, be as valid without it as with it.

It is secondly insisted, that as the plaintiff had offered the deed in evidence, containing the receipt for the purchase money, it was incompetent for him to show that the purchase money had not been paid. The case of Higdon and Thomas furnishes a decision against this position. There the plaintiff offered the deed in evidence, and if the position now main? tained was true, the instruction granted by the court below would have been affirmed; hut it was on the contrary reversed. But independent of this authority, the principle is clear and pndeniable, that although a party cannot discredit his own testimony, yet hp may show that his witness is mistaken, and is not precluded from showing the truth by any testimony, oral or written, which he may produce.

It is contended under the first bill of exceptions, that there being no note or memorandum in writing of the agreement, signed, &c., for the sale of the land in question, as required by the statute of 29 Chas. 2, ch. 3, the action of indebitatus assumpsit will not lie. The bill of exception raises no such question, and none such was decided by the court below, and we are forbidden by the act' of 1825, ch. 117, from the examination of this question. The only question presented for the consideration of the court below on this exception, is on the admissibility of the parol evidence offered, for the purpose of proving that the purchase money for the land had not all been paid. Whether the plaintiff did or did not produce any memorandum in writing, signed by the party to be charged, the record does not inform us, for the bill of exceptions does not assert that the evidence offered was all which was adduced by the plaintiff.

We concur with the court below in the opinion by them expressed in the second bill of exceptions. The evidence offered by the defendants was properly rejected as hearsay. It has been argued, that the answer should have been received that the defendants might have an opportunity of impeaching the witnesses testimony by calling up the witnesses to whom he referred, and by them disproving the witnesses statement| to this we think there are two objections, which would induce us t.o affirm the court’s opinion: first, the defendant did not disclose to the court that his design by the introduction of the evidence, was to impeach the witness, of which, we think the court ought to have been apprised; and secondly, because it is incompetent to introduce illegal testimony, and then im? peach the witness by disproving the facts thus illegally estab-. lished.

After verdict, a motion in arrest of judgment was made, upon the ground, that the declaration is defective and insufficient, and two reasons are assigned for the motion, viz: that an action of indebitatus assumpsit will not lie for land sold, and that the plaintiff should have declared specially on the contract of sale, and set out the terms of sale and the mode of payment according to the agreement of the parties. In England, the forms of pleading in Wentworth and in Chitty are given, corresponding with the present declaration.

In 1 Chitty, 338, it is said, the common counts relating to real property are for the price of a freehold or leasehold estate, &c., sold and conveyed to the defendant, when there has been no contract under seal, for the payment of the price. In 2 Sand. Plead. and Evid. 502, it is said, when speaking of the action of assumpsit by vendor against vendee of real property, it is usual to insert the common indebitatus counts. And the only doubt which has been thrown upon this question, has proceeded from 2 Chit. Plead. 32, n. a. But it will be found upon examination of the case of James vs. Shore, 1 Stark Rep. 426, referred to by Chitty, that the plaintiff sought to recover of the defendant, who had bought the land and refused to take it, the difference between the price at which it had been bought in by the defendant and that for which on a re-sale it had been purchased, and Lord Ellenborough said the commissioners were authorised to re-sell, and having re-sold these lots, they could not be considered as sold to the defendant. This, we think, furnishes no argument against the common count in the ordinary case of the sale of land.

In New York, it has been decided, that indebitatus assumpsit will lie in such case, 14 John. 210; 20 John. 38.

In Connecticut the same doctrine is maintained, and in Belden and Seymour, 8 Con. 313, it is treated as a settled doctrine, that an action of assumpsit will lie for the price of land agreed to be paid, and the court cite three cases in that State in which the action was maintained.

A contrary doctrine prevails in Pennsylvania, as appears by the decision of the court in 11 Serg. and R. 49, and the intimation given by the court in 7 S. & R. 311; but these decisions do not appear to us to be satisfactory. In the former case, the question submitted to the court was, whether, under an indebitatus assumpsit count, for goods sold and delivered, you could give evidence of the sale of a growing crop.

The reasons assigned for the judgment are, that the contract was special and executory; that a growing crop did not exist as goods, wares or merchandize, and was incapable of delivery as such, and that the count gave no notice to the defendant of an intention to recover for a growing crop. These may be very good reasons for the particular judgment of the court in that case; but they certainly do not apply to the count now under consideration; for here the contract is averred to have been executed by the delivery of a déed of bargain and sale, and full notice is given in the declaration of the character of' the claim. The execution of the contract, the contract price, and the land sold, are all stated. In Harris’ Entries, a count is also given, such as exists in this case, and in Dixon and Swiggett, 1 H. & J. 252, a general count was relied upon, and no objection appears to have been taken by the eminent counsel engaged in the case. In the case of Repp vs. Repp, MSS. decided by this court at June term 1842, there was a similar count. We may thus infer that this practice has long prevailed in this State, and we perceive nothing in principle to disturb it. The conveyance of the land and the delivery of possession in pursuance of the deed, or in other words, the execution of the contract on the part of the plaintiff, raises a duty on the part of the vendee to pay the consideration money, which will sustain the count. Why should not such a duty be created as well by the sale of land as by the sale of goods? It is said, the subject matter of the contract savours of the realty, and therefore the count is bad. But we have seen no case which' sanctions this technical reason, and unless cases be furnished, deciding the question upon satisfactory grounds, we should feel ourselves bound to say, that the law equally implies a promise to pay in the case before us, as it does in the case of the sale of goods, wares and merchandize. •

judgment; affirmed.