William Wood vs. Beach and Farnsworth, 7 Vt. 522

The opinion of the court was delivered by Mattocks, J. The questions wich arise in this case are— 1. Whether the deed from Samuel Calhoun, Jr. to Beach and Farnsworth was invalid for want of a consideration expressed therein ; and 2. Whether parol proof was properly admitted to prove that the deed was in fact given for a valuable consideration. That part of the deed in question is as follows: — “For and in consideration of dollars, current money of the United States, received to my full satisfaction of,” &c.

If the proper reading of this passage is — in consideration of dollars, current money, &c. then it would mean two or more dollars, which would suffice, as any sum of money would be sufficient. But if it is to read — in consideration of “ blank” dollars, current money, &c., as it is common to read an open space left between two words in printed forms, the filling up of which is necessary to make sense of an instrument, then it is no dollars, and of course no consideration is expressed. The syntax of the law is somewhat different from that of general literature.

The latter, in ascertaining the meaning of a sentence or paragraph, is governed somewhat by the other rules of grammar also. But the law, in putting its construction upon language, is privileged to apply or reject these other rules, as shall suit the wisdom of its purpose; and upon an emergency, it may even treat any given passage as a synecdoche. Yet it will husband this prerogative, and not waste it upon a case that may be determined upon principles that are more ordinary and more safe. But we leave this point in dubio, and decide the case upon the second. In Mildmay’s case, Cok. Abr.

Rep. 12, it is said — “a use cannot be raised by any covenant, proviso or bargain, upon a general consideration; and therefore, if a man by deed, indented and enrolled, 8sc. for divers good causes and considerations, bargain and sell his land to another and his heirs, nihil operalur inde, no use shall be raised upon- such general considerations, for it doth not appear to the court that the bargainor had quid pro quo; but the bargainee may aver that money or other valuable consideration was paid or given, if in truth it was so, and the bargain and sale is good.” It is observable -that this was the case of .a use, the doctrine of which was, that the land itself did not pass for want of livery and seizin; and if thei'e was no valuable consideration given, then the grantor stood seized to his own use; but if there was, then the grantor stood seized to the use of the grantee; and as deeds of bargain and sale grew out of the law of uses, the law re-requiring a consideration to make the latter valid has descended with it, probably without much reason here, where no livery of seizin is required, as it is not very apparent why a consideration which is dispensed with in other sealed instruments should as between the parties be still required in this; yet this seems to be the law.

The only objection that has been made against this ancient authority is, that these general considerations were recited in the deed, and then a particular one was permitted to be averred; whereas, here no consideration is named in the deed, and still a particular consideration was allowed to be proved.

But in the case cited, as no use was raised by those general considerations, the deed did not make even a prima facie case for the grantee, and the averment and proof of the real consideration became necessary to give effect to the deed and create the use; which seems much like this case of giving parol proof to support and give effect to the conveyance ; and several of the other authorities cited by defendants’ counsel are explicit upon this point.

Shepard, in his Touchstone, vol i. p. 510, says — “for howsoever an averment in this case shall not be allowed and taken against a deed, that there was no consideration given where there was an express consideration upon the deed.

Yet when the deed expresses no consideration, (or saith for divers good considerations or the like,) then an averment of a good consideration given shall be received, for this is an averment that may stand with the deed.” In 4 Kent’s Com. 465, the Chancellor says, “ It has long been the settled law, that a consideration expressed or proved was neeessary to give effect to a modern conveyance to uses.

The consideration need not be expressed in the deed, but it must exist.” And again — “ The consideration has become a matter of form as to the validity of the deed, in the first instance in a court of law, and if the deed be brought in question, the consideration may be averred in pleading and supported by proof.” These authorities seem to be conclusive, especially when not even a dictum has been cited on the other side, to show that the parol proof was properly admitted to make out that a sufficient consideration was paid by the grantees, for the execution of the deed. Judgment affirmed.