Bowen v. Bell , 20 Johns. 338 ( 1823 )

Woodworth, J«

delivered the opinion of the Court, This is not a case within the statute of frauds. The contract was perfected by giving the deed. The claim now is, to pay the value3 the consideration to support the promise is the release of tfie plaintiff’s title. It is immaterial what Is the origin of the debt, provided it is founded qn a lawful consideration. This action is not on a contract for the sale of lands, or any interest in lands. The law raises the promise to pay, and, in such case, it is not within the statute of frauds, although it be raisecl from an agreement concerning an interest in lands. In Goodwin v. Gilbert, (9 Mass. Rep. 514.) it is laid down as a general rule, that where land is conveyed by a Seed poll, and the grantee enters under the deed, certain duties being reserved to be performed, as no action lies against the grantee on the deed, the grantor may maintain assumpsit for the non-performance of the duties reserved. The case of Pomeroy v. Winship, (12 Mass. Rep. 514.) is very much in point. It was there decided, that if & parol contract be made for the sale of lands, and a deed be afterwards given pursuant to the contract, the bargain is then consummated, and the contract is liable to no objection arising from the statute of frauds. Actions have frequently been prosecuted in our own Courts to recover the consideration for lands sold and conveyed. In Shepherd v. Little, (14 Johns. Rep. 210.) it was held, that assumpsit would lie to recover the consideration money of land sold. There is, then, no obstacle in the way of a recovery on this ground 5 neither is there any force in the objection, that here was a special agreement proved, and that the count is general; for the evidence introduced went to establish a promise to pay for Abel AustinSs right, which was the one sixth ; it was not a conditional, or special promise. The proof supported the declaration. The case last cited, also shows, that,although the consideration expressed in the deed is acknowledged to have been paid, parol evidence is, notwithstanding, admissible, to show that it had not been paid. When one species of consideration is expressed, another, or different one, cannot be proved, neither can parol proof be admitted substantially to vary or contradict a written contract", but these principles are inapplicable to a case where the payment, or amount of the consideration, becomes a material inquiry.

The Sheriff’s deed to the defendant was properly rejected, as no legal proof of a judgment and execution was offered. The evidence of Olmsted, that the plaintiff bought the share of Austin subsequent to the judgment against the heirs, does not appear to have been urged or relied on at the trial: if it had been, it was not competent proof of a judgment; but, admitting it to have been legal proof, non constat, that it was the judgment under which the Sheriff sold; besides, there was no proof of an execution. If it were admitted, that the defendant purchased under a judgment obtained previous to the plaintiff’s conveyance from Austin, it would not defeat the right to recover ; for the defendant may have had, notwithstanding, substantial reasons to accept a title from the plaintiff, and immediately acquire the possession under it. He chose to purchase the plaintiff’s right, and if he agreed to pay for it, which the jury have found, there was a good consideration for the promise, and, consequently, the title under the judgment was irrelevant, and immaterial.

The motion for a new trial must be denied.

New trial denied.