Jack against Dougherty, 3 Watts 151

The opinion of the Court was delivered by Kennedy, J. The first error assigned embraces two bills of exception taken to the opinion of the court below, rejecting evidence offered by the plaintiff in error to prove a much larger money consideration than that inserted in his deed of conveyance from John Dougherty, one of the defendants, in order to relieve it from the imputation of having been obtained by fraud from Dougherty.

This evidence consisted of the declarations and admissions of the parties made at the time of the execution of the deed by Dougherty to the plaintiff; which were offered to be proved by the scrivener who drew the deed, and was present at the execution of it. It appears to me that they were part of the res gesta, and according to the settled rule in this respect ought to have been admitted in evidence. But it is objected that the evidence was not competent or admissible, because it tended to show that the consideration for making the deed was different from, and inconsistent with, that expressed in it.

The first authority that occurs to me now which seems to sustain the objection, is the case of Clarkson v. Hanway, 2 P. Wms 203, where the master of the rolls held that a different consideration from that expressed in the deed could not be averred and proved; because, as he thought, it would be liable to the danger of perjury, which the statute intended to guard against. And Lord Hardwicke afterwards, in Peacock v.

Monk, 1 Ves. 128, says, “where any consideration is mentioned, as of lóve and affection only, if it is not also and for other considerations, you cannot enter into the proof of any other; the reason is because it would be contrary to the deed: for where the deed says it is in consideration of a particular thing, that imports the whole consideration and is negative to any other.” And again, in Watt v.

Grove, Lord Redesdale held that an impeached deed could not be supported by evidence of considerations different from those expressed in it; which possibly was going still further than Sir Joseph Jekyll or Lord Hardwicke intended. It also appears that some of the late English text writers upon these authorities, seem to think it the settled rule now in England, that although a deed may in equity be impeached by averments negativing the consideration therein expressed, yet it cannot be supported by evidence of considerations different from those alleged in it. 2 Hovenden on Frauds 103.

This rule also seems to have, been adopted in New York. Schemerhorn v. Vanderheyden, 1 Johns. Rep. 139; Homes v. Barker, 3 Johns. Rep. 509, 510; Margley v. Hauer, 7 Johns. Rep. 342; Hildreth v. Sands, 2 Johns. Cha. Rep. 43. Although this be the rule which prevails at the present day in England, of which, however, I entertain some doubt, yet I am inclined to believe that prior to the time of the earliest of the authorities referred to, the rule was not only held to be different, but has been considered so, occasionally at least, since the date of the most of them. In Villers v.

Beaumont, decided in Pasch. 3 and 4 Phil. & M., reported in Dyer 146 (

a) and Benloe's Rep. 39, it was ruled in the case of a deed purporting on its face to be made in consideration of 70 pounds, alone, without more, that marriage also might be averred and proved as an additional consideration; because, as the court said, it stood with the deed, and was not repugnant to it. This case is likewise recognized and mentioned without any disapprobation in Mildmay’s case, 1 Co. 176 (a). In Newcomb v. Bonham, 2 Cha. Ca. 61, it is laid down that a consideration of blood not expressed in the deed may be proved in addition to a money consideration mentioned in it.. And in The King v.

The Inhabitants of Scammonder, 3 Term Rep. 474, the consideration expressed in the deed of conveyance was 28 pounds, without any mention of other consideration; and parol evidence was admitted to prove that 30' pounds was the real consideration. Lord Kenyon said, “it was clear the party might prove other considerations than those expressed in the deed. It is permitted in all cases of covenants to stand seised to uses.” He also cites the case of Filmer v. Gott, 7 Bro. P. Ca. 70.

Mr Sugden in his Treatise on Vendors 473 (Philadelphia 1820), in speaking of a voluntary settlement says, “ although apparently it be voluntary, yet if a valuable consideration were paid or given, parol evidence is admissible in order to support the deed and rebut the supposed fraud,” and adds, “this seems to be admitted by all the cases.” Mr Phillips, after reciting most of the English authorities last above referred to, concludes by saying that they .“appear to establish the rule that, although a consideration is expressed, some other additional consideration may be shown not inconsistent with the former.” In Virginia, according to the decisions of the court of appeals, the tribunal of dernier resort in that state, in equity, either party may prove the true consideration of the deed, though different from that expressed in it.

Duval v. Bibb, 4 Hen. & Munf. 113. So in Eppes v. Randolph, 2 Call’s Rep. 103, it was ruled that although the deed did not mention that it was made in consideration of a marriage contract, the party may aver and' prove it. And in Harvey v. Alexander, 1 Rand. 219, it was decided that where the deed was made in consideration of “ natural love and affection,” and the further consideration of “ one dollar,” parol proof was admissible of other valuable considerations.

Mr Justice Cabell, who delivered the opinion of the court, says, “ the question whether evidence inconsistent with the deed can be admitted does not arise in this cause. This is not the case of a deed purporting to be for good consideration only. It is in express terms for valuable as well as for good consideration. It is true, that the valuable consideration expressed is only one dollar; but one dollar, viewed as a consideration, is as much a valuable consideration as a million of dollars.

The real question is, whether a deed purporting to be for ‘ love and affection’ and for ‘ one dollar,’ and assailed as being fraudulent as to creditors, can be supported by evidence showing that in addition to the one dollar expressed, full value was received by the grantor.” And again he observes further: “ it is believed to have been the practice at an early period, both in England and in this country, for deeds.not to express the actual sum, but a nominal one only.” I have some reason to believe that such a practice may be affirmed with great'truth to have obtained at one time in this state.

The, rule laid down by the court of appeals of Virginia, in the last mentioned case, is recognized and sustained by the supreme judicial court of Massachusetts in Bullard v.

Briggs, 7 Pick. 533: where the consideration alleged in the deed was 1500 dollars, without any reference to or mention of other consideration, parol evidence was admitted on behalf of the grantee, to show that the true consideration was a release of right of dower executed by the wife of the grantor to certain real estate, which he was about giving and did give a mortgage on, in consideration of which the property in the deed was conveyed to the grantee, the mother of the wife, in trust for her daughter, and not in consideration of 1500 dollars paid by the grantee as expressed on the face of the deed.

Chief Justice Parker, in delivering the opinion of the court, says, “The consideration proposed to be proved is different from that expressed in the deed, and it is objected that the deed is conclusive upon this point; but we think it has been reasonably settled that this matter is open to evidence. More or less than is expressed in a deed may be proved by parol evidence as the consideration; and even a different consideration, if valuable, may be proved.

A deed is valid in law with any valuable consideration, however small; but as inadequateness of consideration may be relied on as evidence of fraud, the party claiming under it may show that another and greater consideration was given that! that which is expressed : and this is done to rebut the presumption of fraud which might arise from the apparent consideration in the deed.

Cases of this kind are of frequent occurrence in the investigation of conveyances alleged to be fraudulent.” Although I cannot recur to any adjudged case in this state where any rule has been laid down in respect to the admission of parol evidence on this subject, yet I am inclined to believe that it has been frequently admitted to prove a greater and even a different consideration from that expressed in the deed, in order to support it where it was assailed on the ground of fraud, by showing the inadequacy of the consideration mentioned in it. In White v. Weeks, 1 Penns.

Rep. 486, it was decided that where no consideration was expressed in a deed of bargain and sale, parol evidence might be admitted to show that a consideration did pass from the grantee to the grantor. This, however, is nothing more than what every court that has adjudicated on the subject has admitted to be correct: for all agree .that such evidence is perfectly consistent with the deed, and therefore admissible to give it efficacy.

It is plain from all the cases on this point, that any discrepancy which may appear to exist in the decision of them arose entirely from a difference of opinion among judges as to what was, or was not inconsistent with the terms of the deed : some judges thinking that the insertion of any particular consideration in a deed, without more, expresssly negatived the fact of its being founded upon any other or greater consideration; while others, conceiving that, as the law did not always require the true or the whole of the true consideration to be inserted in order to give the deed validity, and that therefore it frequently happened that but little regard was paid by the parties to the consideration set forth in the deed, whether it was the whole consideration or not, leaving it perhaps to the scrivener to put in such of it as in law he might deem sufficient to make the deed operative, thought it unreasonable to make the consideration so introduced into the deed conclusive upon the parties, so as to preclude them from showing the true, or the whole consideration, whenever the ends of justice might seem to require it.

The consideration being thus inserted, rather to meet the exigency of the law than the whole truth of the case, it was held not to be inconsistent with the intention of the parties, which ought always to give force and meaning to the terms of the deed, to admit parol evidence to show what the true consideration of it was.

No consideration being expressed in the deed has never been held to do more than to raise the presumption that none passed: and why should the circumstance of a particular consideration being expressed in it do more than raise a like presumption that no other or greater than that mentioned was given? I am inclined to believe that this is the point of view in which the law, as it was originally settled in that country whence we have derived our rules of jurisprudence, considered this matter: and being only ground for presumption, and not for construction, it was capable of being removed by parol evidence.

It is as Lord Thurlow said in Coote v. Boyd, 2 Bro. Ch. Rep. 527, “a question of presumption, donee probatur in contrarium, and will let in all sorts of evidence.

Where the presumption arises from the construction of words simply qua words, no evidence can be admitted.” As to the objection, that such evidence ought not to be received because it may be productive of perjury, and consequently work great injustice, it is obvious that there can seldom occur any occa- ■ sion for offering it, unless for the purpose of repelling parol evidence previously given by the other party in order to show fraud; and as the door is always open for every kind of evidence to establish fraud, notwithstanding it may sometimes be attended with perjury when given for that purpose, it would seem but fair to put both parties on an equal footing, and to permit it to be repelled by the same species of evidence which may be given to prove it.

I therefore think that the evidence offered by the plaintiff ought to have been received, and that the court erred in rejecting it. The second error is, that the court erred in their answer to the fourth point of the defendant’s counsel; but as only two points appear to have been submitted by the defendant’s counsel, it is presumed that this error was extended to embrace the answer of the court to the fourth point of the counsel for the plaintiff: and if so, it is sufficient to say that there is nothing erroneous in it.

The third error is, that the court erred in their answer to the plaintiff’s fifth point, in directing the jury, among other things, “ that they were not called upon to decide the validity of defendant’s title; the only question being how far the plaintiff had made out his own.” In this I think there was error; for the plaintiff had shown a title upon which the jury ought to have given a verdict in his favour, unless the title set-up by the defendant were better; hence it was necessary, under a proper direction from the court, for the jury to pass upon both titles.

The fourth error is an exception to the charge of the court on the defendant’s first point; in which the defendant’s counsel requested the court to instruct the jury that the title produced by the plaintiff would not enable bim to recover, upon the ground that the conveyance by John Dougherty, one of the defendants, to James Dougherty, the-other defendant, was fraudulent; and the court accordingly did so.- In this I also think the court erred; for if the deed of conveyance from John to James Dougherty was fraudulent, and made between them for the purpose of disabling John from a fulfilment of his contract to convey the land in dispute to -Wilson, who assigned the contract to the plaintiff, it was void as against the plaintiff; or if the deed of conveyance from John Dougherty to the plaintiff was made in discharge of a debt or debts, for the payment of which John Dougherty was bound to the plaintiff, and the deed of conveyance from John to James Dougherty was made for the purpose of defeating the payment of such debt, it ought to have been considered fraudulent and void as against the plaintiff, who in either case would be entitled to recover the land upon the deed of conveyance made to him.

The fifth and last error assigned is an exception to the answer of the defendant’s second point; in which the court told the jury, that if the deed of conveyance from John Dougherty to James Dougherty were voluntary, still the plaintiff could not recover by force of the statute of 27 Elizabeth, because he was not a purchaser for a valuable considération.

In this it appears to me the court were mistaken ; for the plaintiff, from the face of his deed, appeared to be a purchaser for a valuable consideration; and if the consideration therein expressed was impeached by the testimony given on the trial, whether a valuable consideration was given or not, then it became a question of fact proper for the jury to decide on : but the court, by their direction on this point, usurped the province of the jury, by deciding both the law and the fact for them. Judgment reversed, and a venire de novo awarded.