Quimby v. Stebbins , 1875 N.H. LEXIS 100 ( 1875 )

The defendant in this action had the use of the farm in question for two months after the delivery of his deed to the plaintiff. It is conceded that by that deed the fee in the property and the right of immediate possession passed to the plaintiff. It is not claimed that if the plaintiff had refused to let the defendant occupy, the defendant would have had any right of action for the breach of a verbal contract to let him occupy the farm.

But the defendant, not denying the plaintiff's right to the possession of the land, and not denying that he would be liable to pay for it if he has not paid for it, and not denying the receipt of the consideration so far as is necessary to support the deed, proposed to show that a part of the consideration of the deed was by agreement to be applied in payment of this rent. If so much of the consideration of the deed had been left in the plaintiff's hands unpaid, the defendant might have maintained an action to recover that balance. He may equally well show that so much of the consideration money of the deed has been paid by the plaintiff and received by him, by its being appropriated to the payment of this rent. Preble v. Baldwin, 6 Cush. 550. For the general doctrine in regard to inquiring into the consideration of a deed, see Pritchard v. Brown, 4 N.H. 397, Buffum v. Green, 5 N.H. 71, 82, Morse v. Shattuck, 4 N.H. 229, Nutting v. Herbert,35 N.H. 120, and Horn v. Thompson, 31 N.H. 562.

It appears, to me, therefore, that the exceptions must be overruled.

SMITH, J. The parol evidence in relation to the occupation of the premises after the execution and delivery of the deed, June 9, 1870, could not have the effect to control the operation of the deed. If it had been offered for any such purpose, it would undoubtedly have been inadmissible. It was only received to show that the defendant remained in possession of the premises till August 25, by permission of the plaintiff, upon an independent agreement that he was to pay the rent therefor. Kent v. Kent, 18 Pick. 569, is a case directly in point.

A receipt is always open to explanation. The acknowledgment in the deed of the consideration is nothing more than a receipt, although under seal. Wilkinson v. Scott, 17 Mass. 249; 3 D. E. 474.

A man is estopped by his deed to deny that he granted or that he had good title to the estate conveyed; but he is not bound by the consideration expressed, because that is known to be arbitrary, and is frequently different from the real consideration of the bargain. 14 Johns. 210, cited in Wilkinson v. Scott, supra. It is seldom true, for often credit, either in whole or in part, is given.

In Preble v. Baldwin, 6 Cush. 649, parol evidence, proving an additional consideration to that stated in the deed, was objected to as inadmissible, as tending to vary and contradict the terms of the deed. The court overruled the objection, remarking "we do not consider this an open question;" — and in Davenport v. Mason, 15 Mass. 85, it was held that parol evidence, though not admissible to contradict or vary the terms of a deed, may be admitted to establish an independent fact, or to prove a collateral agreement incidentally connected with the stipulations of a deed or other written contract.

Swisher v. Swisher's Adm'r, 1 Wright's Rep. 755, cited in 3 Phill. Ev. 1479 (ed. 1843), and cited in the defendant's brief, is exactly in point. It was there held that an agreement between the grantor and grantee, contemporaneous with the deed, that the grantor should occupy the premises rent free, might be received in evidence, not being inconsistent with the deed, but an independent fact.

Exceptions overruled.