Tyler v. Carlton , 7 Me. 175 ( 1830 )

Mellen C. J.

delivered the opinion of the Court in Cumberland, at the adjournment of May term, in August following.

By the report of this case it appears that the judge’ presiding at the trial admitted parol evidence as to the consideration of the deed from the demandant to Mel Tyler, though objected to by the counsel for the tenant, and also gave certain instructions to the jury, of which the counsel for the demandant complains. We are of opinion that the instructions were not correct, and on that ground the verdict ought to be set aside; unless the objection as to the admissibility of the parol evidence touching the consideration of the deeds, is by law sustainable ; for if such proof cannot bo admitted, a new trial would be useless, and judgment should be entered for the tenant.

It is contended that no parol proof is admissible to show that the consideration of the deed was in any respect different from what the deed imports ; and it is admitted that the only consideration therein expressed is one thousand dollars. Several cases on this point have been cited; as Steele v. Adams, on one side, and Wilkinson v. Scott, 17 Mass. 249, on the other. There are numerous other cases bearing on the general question; and in Schillinger v. McCann, 6 Greenl. 364, we were requested to review our decision in Steele v. Adams. But the cause was disposed of without either affirming or overruling that decision. In the present case it is not necessary for us to pursue a different course. Without contradicting the deed as to the consideration expressed, it was competent for the plaintiff to prove an additional consideration-, not expressed. Such was the object and tendency of the evidence which was offered and admitted. This seems to be a well settled principle of law. 1 Co. 176, Mildmay’s case; 2 Co. 76, Ld. Cromwell's case ; 1 Com. Dig. tit. Bargain and Sale, B. 11; 1 Bac. Abr. same title D ; Rex v. Scammonden, 3 D. & E. 474 ; Wallis v. Wallis, 4 Mass. 135. Here Parsons C. J. says “ in this case, beside the valuable consideration expressed, a consideration of natural affection may be averred, as consistent with it.” And in Quarles v. Quarles, ib. 680. Sedgwick J. in pronouncing the opinion of the court, says “ the principle is, I think, most clearly established, that when one consideration is expressed in a deed, any other consideration consistent with it may be averred and proved.” For these reasons the cause must be opened to another trial, when the jury may expressly decide the question whether there was existing and in force, at the time the mortgage deed was given, a parol contract on the part of Abel Tyler to support and maintain his parents, as mentioned in the condition of the mortgage.

Verdict set aside and new trial granted.