Harwood v. Estate of Harwood

The opinion of the court was delivered by Kellogg, J.

This was a report of auditors, upon which the county court rendered judgment for the defendant. At the hearing before the auditors certain testimony was admitted, which the plaintiff claims should have been excluded, and for this cause he insists, the report should have been set aside. This objection is founded on the supposition, that the tendency of the testimony was to vary, or contradict, the terms of a deed executed by the plaintiff to E. Harwood, the deceased, in his life time. The plaintiff had labored for the deceased, who was his father, for several years, when his father executed to him a deed of certain real estate. Subsequently an arrangement was made between the plaintiff and his father, by which the plaintiff re-conveyed to his father the same real estate, upon the payment of five hundred dollars. And the testimony objected to proved, that the five hundred dollars, by the agreement of the parties, was to be in full of all claims, which the plaintiff had against his father.

The plaintiff relies upon the case of Ripley v. Paige, 12 Vt. 353 , as an authority to show the inadmissibility of the testimony objected to. The question in that case arose upon the construction of a written agreement for the conveyance of a farm. The contract particularly described the estate, that was to be conveyed, and the price that was to be paid for it. The farm was conveyed, pursuant to the contract. But the defendant insisted, that the plaintiff was *510 to convey other property besides the farm, and which was not specified in the contract, and offered parol testimony to prove it, — which was properly excluded by the court, as it tended to enlarge and vary the written contract. The case is not analogous to the one before the court. The testimony received by the auditors had no tendency to vary, or impair, the legal effect of the terms of the deed.

That the parties are not concluded by the consideration expressed in the deed has long been settled. If no consideration be expressed, the grantee may prove a consideration aliunde, and by parol, so as to uphold the deed. So, if a consideration be expressed in the deed and acknowledged to have been received to the satisfaction of the grantor, yet the grantor is not estopped from showing, that no consideration was in fact paid. Sheppard v. Little, 14 Johns. 210 . So, in an action upon the covenant of seisin in a deed, the grantee may show, by extrinsic evidence, the payment of a greater consideration than that expressed in the deed. 8 Conn. 304 . 4 N. H. 229. So, it has been held, that a consideration may be averred and shown, which is consistent with the consideration expressed in the deed. And Mr. Phillips, in his treatise upon evidence, says, “ that the cases appear to have established, that it is not considered to be contrary to or inconsistent with a deed, to prove another consideration in addition to the consideration expressed.”

Indeed, it seems to be well settled, “ that the only effect of a consideration clause in a deed is to estop the grantor from alleging, that the deed was executed without consideration; and that for every other purpose it is open to explanation, and may be varied by parol proof” 16 Wend. 460 . The same doctrine is held in Beach v. Packard, 10 Vt. 96 , and Lazell v. Lazell, 12 Vt. 443 .

The testimony was properly received by the auditors, and the judgment of the county court is therefore affirmed.