Nos. 11, 12.-R. v. Inhabitants of Scammonden; Clifford v. Turrill. - Notes.

ENGLISH NOTES.

As a comparatively recent instance of the application of the principle may be cited The Llanelly Railway, &c. Co. v. London & North Western Railway Co. (1872), L. R. 8 Ch. 942, 42 L. J. Ch. 884, where it was held competent to show by evidence outside the instrument that an agreement to give running powers was made in consideration of a loan of £40,000, although no consideration was expressed in the agreement except the mutuality of some of the stipulations. The evidence was allowed to raise the presumption of an intent that the powers should be permanent.

It has been held that although a conveyance is expressed to be for natural love and affection, and for divers other good causes and considerations, it is competent to prove a valuable consideration so as to take the deed out of the statute 27 Eliz., c. 4. Bayspoole v. Collins (1871), L. R. 6 Ch. 228, 40 L. J. Ch. 289. But the question of consideration under this Act is of less importance since the Voluntary Conveyances Act, 1893 (56 & 57 Vict., c. 21), which enacts that a conveyance shall not be deemed fraudulent or covinous within the Act 27 Eliz. merely by reason of its being voluntary.

AMERICAN NOTES.

In Browne on Parol Evidence, sect. 91, it is said: "An unexpressed consideration may be shown by parol;" citing Hartley's Lessees v. McAnulty, 4 Yeates (Penn.), 95; 2 Am. Dec. 396; McClanahan v. Henderson, 2 A. K. Marshall (Kentucky), 388; 12 Am. Dec. 412; Nedvidek v. Meyer, 46 Missouri, 600; Hannan v. Oxley, 23 Wisconsin, 519. And at sect. 92 it is said: "Parol evidence is competent to contradict the recital of receipt of the consideration, or to show an additional, smaller, or different consideration; but not to show an entire lack of consideration, or to contradict contractual expressions as to price or quantity." This is substantiated by O'Neale v. Lodge, 3 Harris & McHenry (Maryland), 433; 1 Am. Dec. 377; Elysville Manufacturing Co. v. Okisko Co., 1 Maryland Chancery, 392; Collins v. Tillou's Adm'r, 26 Connecticut, 468; 68 Am. Dec. 398; Linsley v. Lorely, 26 Vermont, 123; McCrea v. Purmort, 16 Wendell (N. Y.), 460; 30 Am. Dec. 103; Witbeck v. Waine, 16 New York, 538; McKinster v. Babcock, 26 New York, 380; Barker v. Bradley, 42 New York, 320; Wilkinson v. Scott, 17 Massachusetts, 249; Goodspeed v. Fuller, 46 Maine, 141; 71 Am. Dec. 572; Harrison v. Castner, 11 Ohio State, 339; Jones v. Jones, 12 Indiana, 389; Holbrook v. Holbrook, 30 Vermont, 432; Swafford v. Whipple, 3 Iowa, 261; 54 Am. Dec. 498; Bolles v. Beach, 22 New Jersey Law, 689; Hamilton v. M'Guire's Ex'rs, 3 Sergeant & Rawle (Penn.), 355 ; Pritchard v. Brown, 4 New Hampshire, 400; Bowen v. Bell, 20 Johnson (N. Y.), 338; 11 Am. Dec. 286; Watson v. Blaine, 12 Sergeant & Rawle (Penn.), 131; 14 Am. Dec. 669; Harrey v. Alexander, 1 Randolph (Virginia), 219; 10 Am. Dec. 519; Tyler v. Carlton, 7 Greenleaf (Maine), 175; 20 Am. Dec 357;

Nos. 11, 12. - R. v. Inhabitants of Scammonden; Clifford v. Turrill. -Notes.

Peck v. Vandenberg, 30 California, 23; Oliver v. Oliver, 4 Rawle (Penn.), 141; 26 Am. Dec. 123; Beach v. Packard, 10 Vermont, 96; 33 Am. Dec. 185; Depeyster v. Gould, 2 Green Chancery (New Jersey), 474; 29 Am. Dec. 723; Groves v. Steel, 2 Louisiana Annual, 480; 46 Am. Dec. 551; Rockhill v. Spraggs, 9 Indiana, 30; 68 Am. Dec. 607; Buckley's Appeal, 48 Penn. State, 491; 88 Am. Dec. 468; Sullivan v. Lear, 23 Florida, 463; 11 Am. St. Rep. 388; Booth v. Hynes, 54 Illinois, 363; Howell v. Moores, 127 Illinois, 67; Parker v. Foy, 43 Mississippi, 260; 55 Am. Rep. 484; Adams v. Lambard, 80 California, 426; Murdock v. Cox, 118 Indiana, 266; Scoggin v. Schloath, 15 Oregon, 380; Wood v. Moriarity, 15 Rhode Island, 518; Wheeler v. Billings, 38 New York, 263; McConnell v. Brayner, 63 Missouri, 461; Schillinger v. McCann, 6 Greenleaf (Maine), 364; Hebbard v. Haughian, 70 New York, 54; Baldwin v. Dow, 130 Massachusetts, 416; Burnham v. Dorr, 72 Maine, 198; Holmes' Appeal, 79 Penn. State, 279; Fall v. Glover, 34 Nebraska, 522; Union M. L. Ins. Co. v. Kirchoff, 133 Illinois, 368; Fechheimer v. Tronstine, 15 Colorado, 386. These decisions are based on the theory that the deed is not the contract, but the simple effectuation of the parol contract.

The later New York cases reverse the doctrine of Schermerhorn v. Vanderheyden, 1 Johnson, 139; 3 Am. Dec. 304, which was declared with very little apparent consideration, although similar doctrine was also laid down in Maryland (Betts v. Union Bank, 1 Harris & Gill, 175; 18 Am. Dec. 283; Bladen v. Wells, 30 Maryland, 577), South Carolina (Graves v. Carter, 2 Hawks, 576; 11 Am. Dec. 786), Louisiana (Harrison v. Laverty, 8 Martin, 213; 13 Am. Dec. 283), and Texas (McCampbell v. Durst, 73 Texas, 410).

Chief Justice APPLETON, in Goodspeed v. Fuller, 46 Maine, 141; 71 Am. Dec. 572, accurately summed up the matter as follows: "It may be shown that the price of the land was less that the consideration expressed in the deed, as in Bowen v. Bell, 20 Johns. 338; or that it was more, as in Belden v. Seymour, 8 Conn. 304; or that it was contingent, dependent upon the price the grantee may obtain upon a resale of the land, as in Hall v. Hall, 8 N. H. 129; or that it was in iron, when the deed expressed a money consideration, as in McCrea v. Purmort, 16 Wend. 460; or that no money was paid, but that it was an advancement, as in Meeker v. Meeker, 16 Conn. 387; or that a portion of the price was to be paid by the grantee and the balance was an advancement, as in Hayden v. Mentzer, 10 S. & R. 329; or that it was paid by some one other than the grantee and thus raise a resulting trust, as in Scoby v. Blanchard, 3 N. H. 170; Pritchard v. Brown, 4 N. H. 397; Dudley v. Bosworth, 10 Humph. 9." "The entire weight of authority tends to show that the acknowledgment of payment in a deed is open to unlimited explanation in every direction."

In Fechheimer v. Tronstine, 15 Colorado, 386, the Court said: "As a general rule, the consideration recited in an instrument under seal, as well as in a simple receipt, is primâ facie evidence only, and may be controlled or rebutted by parol proof. It is now firmly established that such recitals stand upon a distinct basis, and are merely primâ facie evidence against the party making them. They are like ordinary receipts which are open to explanation by parol. This question has been frequently before the Courts, and the rule in favor of

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the admissibility of such evidence is now well settled. That this is true of ordinary receipts for money, there can be no doubt. This is said by Dr. Wharton to be a necessary consequence of the informality of such instruments.' 2 Whart. Ev., § 1064. The same rule has been applied in many cases to the consideration clause in a deed under seal. See Wilkinson v. Scott, 17 Mass. 249; Clapp v. Tirrell, 20 Pick. 247; Thayer v. Viles, 23 Vt. 494; White v. Miller, 22 id. 380; Belden v. Seymour, 8 Conn. 304; Bowen v. Bell, 20 Johns. 338; Bassett v. Bassett, 55 Me. 127. In Wilkinson v. Scott, supra, it was held that a receipt was always open to explanation, and the fact that it was under seal did not change the rule; and although a grantor was estopped by his deed to deny that he granted or that he had a good title to the estate conveyed, yet he was not bound by the consideration expressed; but that the real consideration might be proven. In Clapp v. Tirrell, supra, it was held that the consideration expressed was only primâ facie evidence of payment, and that it might be controlled and rebutted by proof. And in Thayer v. Viles, supra, it was held that the recitals in a deed of the amount of the consideration and its receipt will not estop a party from sustaining an action for the price. In White v. Miller, supra, it was decided that such recitals were subject to explanation. In Belden v. Seymour, supra, it was said: "The only operation of a clause in a deed regarding the consideration is to prevent a resulting trust in the grantor, and to estop him forever to deny the deed for the uses therein mentioned.' We deem further reference to authorities unnecessary. It is sufficient to say that it is clearly established by the great weight of authority, that as a general rule, the consideration in an instrument under seal, as well as in a simple receipt, may be explained by parol evidence."

It may be shown that the consideration was an exchange of lands: Bristol Sav. Bank v. Stiger, 86 Iowa, 344. Or in part the assumption of a mortgage: Hopper v. Calhoun, 52 Kansas, 703; 39 Am. St. Rep. 363. Or in a deed from father to daughter, a donation to support the title of a purchaser from the daughter, the statute allowing a married woman to convey property acquired by gift: Velton v. Carmack, 23 Oregon, 282; 20 Lawyers' Rep. Annotated, 101. Or in a deed from sister to brother, a further agreement by the grantee to support the parents: Wilfong v. Johnson, 41 West Virginia, 283. Or in a deed to a railroad company, expressed to be "benefit to be derived from the building of the road and one dollar paid," the company's promise to build a station on the land: Louisville, &c. Ry. Co. v. Neafus, 93 Kentucky, 53. Or that part of the consideration was that intoxicating liquors should not be sold on the land: Hall v. Solomon, 61 Connecticut, 476; 29 Am. St. Rep. 218. Or an oral agreement to pay certain debts of the grantor: Price v. Miller (So. Carolina), to appear. Or that instead of love and affection it was money: Nichols v. Burch, 128 Indiana, 324. Or that there was an agreement to survey the land and pay for excess or deduct for deficiency: Ludeke v. Sutherland, 87 Illinois, 481; 29 Am. Rep. 66. Or to pay more in the future: Kickland v. Menasha Co., 68 Wisconsin, 34; 60 Am. Rep. 831. Or to execute a will in the grantor's favor: Manning v. Pippen, 86 Alabama, 357. Or that it was in full of all claims of the grantee, including one in suit: Groves v. Steel, 2 Louisiana Annual, 480; 46 Am. Dec. 551; Kimball v. VOL. XIV. -48

Nos. 11, 12. R. v. Inhabitants of Scammonden; Clifford v. Turrill.-Notes.

Myers, 22 Michigan, 276; 4 Am. Rep. 487. Or also in full of a claim for trespass: Hodges v. Heal, 80 Maine, 281. An absolute mortgage may be shown to have been a mere indemnity for future advances: Moses v. Hatfield, 27 South Carolina, 324. It may be shown that the grantee took subject to an incumbrance of which he knew: Allen v. Lee, 1 Indiana, 58; 48 Am. Dec. 352. So a reservation of growing crops may be shown: Kluse v. Sparks, 10 Indiana App. Ct. 444.

"The rule does not forbid an inquiry into the object of the parties in executing or receiving the instrument." Peugh v. Davis, 96 United States, 336.

The contrary is held in a few jurisdictions. Thus in Wilkinson v. Wilkinson, 2 Devereux Equity (Nor. Car.), 377, it is said: "The consideration upon which a deed is made is an important part of the contract; and when it is distinctly declared, parol evidence is not more admissible to contradict or substantially to vary that, than any other terms upon which the parties have expressed their agreement." So a valuable consideration may not be substituted for love and affection. Houston v. Blackman, 66 Alabama, 559; 41 Am. Rep. 756; Christopher v. Christopher, 64 Maryland, 583 (citing Clarkson v. Hanway, 2 P. Wms. 204); Burrage's Lessee v. Beardsley, 16 Ohio, 438 (citing Hind's Lessee v. Longworth, 11 Wheaton (U. S. Sup. Ct.), 214).

But where the consideration recited is the release of a debt, it may not be shown to include the release of the grantor's liability to the grantee as guardian. Baum v. Lynn, 72 Mississippi, 932; 30 Lawyers' Rep. Annotated, 441. So a parol reservation of a growing crop may not be shown. Adams v. Watkins, 103 Michigan, 431. So where the recital is that the purpose is the widening of a street, and that the city should cause the removal of the grantor's fixtures on the land conveyed, no agreement of the city to perform other acts may be shown. Weaver v. Gainesville, 1 Texas Civil Appeals, 286: "This recital is more than the mere receipt of the payment of the purchasemoney; it is also the written evidence of a contract between the parties that the plaintiff would grant the right of way, and that the defendant would construct the road over the same." So in respect to a written lease, evidence is not admissible to show that part of the rent was to be taken out in board. Stull v. Thompson, 154 Penn. State, 43. "This was a direct contradiction of the terms of the lease, and was properly excluded. The case is admittedly close under some of our decisions, but we think it was properly decided." (Clearly so, because the agreement was executory.)

Parol evidence that the deed was without consideration may not be shown as between the parties. Gardner v. Lightfoot, 71 Iowa, 577; Feeney v. Howard, 79 California, 525; Salisbury v. Clarke, 61 Vermont, 453; Hammond v. Woodman, 41 Maine, 177; 66 Am. Dec. 219; Finlayson v. Finlayson, 17 Oregon, 317; 3 Lawyers' Rep. Annotated, 801; Hebbard v. Haughian, 70 New York, 54; Goodspeed v. Fuller, 46 Maine, 141. Non-payment of a nominal consideration may not be shown to defeat a deed. Meriam v. Harsen, 2 Barbour Chancery (N. Y.), 267.

But evidence is admissible to show that a mortgage was without consideration, because of its executory character. Baird v. Baird, 145 New York, 659; 28 Lawyers' Rep. Annotated, 375.

WHERE the operative part of a deed is unambiguous and consistent with the general scope and character of the deed, its effect is not to be cut down by a recital; but where the operative part is ambiguous, it may be controlled by a clear and unambiguous recital.

In a release, general words in the operative part are qualified by the recital.

A deed containing a general release of all debts, &c., recited that the [606] releasee had previously agreed to pay to the releasor the sum of £40 for the possession of certain premises, and that in "consideration of the said sum of £40 being now so paid as herein before is mentioned," and also in consideration of the sum of 10s. apiece, well and truly paid to the said releasor and J. S., the receipt of which said several sums of money they did thereby acknowledge, did release, &c. There was also a receipt for the sum of £40 indorsed on the release. But it appeared on action afterwards brought for this sum that, in fact, it had never been paid. Held, that this deed of release was no estoppel, inasmuch as the general words of release were qualified by the recital, which stated only an agreement to pay, and not an actual payment of the sum of £40.

Assumpsit against the defendant, as the maker of the following promissory note, dated Edenbridge, April 11th, 1821, "Two months after date I promise to pay Mr. Thomas Lampon, junior, or order, the sum of £40, value received this day, in things appraised by Mr. Doubell, and in having possession given to me of the premises lately held under me by Thomas Lampon, senior,