Chesson v. Pettijohn, 28 N.C. 121, 6 Ired. 121 (1845)

Dec. 1845 · Supreme Court of North Carolina

28 N.C. 121, 6 Ired. 121

WILLIAM L. CHESSON vs. JOHN C. PETTIJOHN.

Where one consideration is mentioned in a deed, and others referred to, though not specified, the latter may be proved by parol.

The case of Jones v. Sassers 1 Dev. and Bat. 452, cited and approved.

Appeal from the Superior Court of Law of Washington County, at the Fall Term, 1845, his Honor Judge Manly presiding.

This was an action of covenant, brought by the plaintiff against the defendant, upon a covenant of quiet enjoyment, contained in a deed from the defendant to Franklin F. Fagan, for an undivided half of a Tract of Land on the Roanoke river. The consideration recited in the deed, was more than sufficient to cover the amount of damages claimed in this suit. The plaifitiff, after producing in evidence the conveyance from the defendant to Fagan, shewed a deed in trust from Fagan to David C. Guyther, reciting the consideration of one dollar and the indebtedness of the said Fagan to divers persons, amounting to about four thousand dollars, as the consideration of the conveyance, by which deed the said land and other real and personal estate were conveyed in fee to Guyther, as a trustee for the benefit of the creditors of Fagan. Guyther. the trustee, conveyed the same fund by a deed to the plaintiff, in which it was recited that the deed was made “ for the consideration of one dollar and for other considerations me thereunto moving.” The plaintiff then shewed a valid title to the same land, outstanding in the heirs at law of one Enoch Rayner, by whom he had been evicted previously to the commencement of this suit. The plaintiff offered to prove, that, in addition to the considerations, mentioned in the deed from Guyther to him, he paid the sum of $625, by crediting that amount upon a judgment he had against Fagan. This evidence was objected to, on the part of the defendant, but was received by the Court. The evidence then proved, that other land, besides that conveyed by the defendant to Fagan with warranty, was conveyed by the deed from Guyther to Chesson, and there was conflicting evidence of the nature of that, which was conveyed by the defendant to Fagan, which it is unnecessary to state. The defendant’s counsel insisted, that the deed from Guyther to Chesson shewed, that Chesson had obtained the title to the land, which was sold to Fagan, under an execution sale of the property of Fagan, previously to the conveyance from Guyther to Rim ; and that, therefore, the consideration paid by Ches-son when he took the deed from Guyther, constituted no part of the -consideration, which was paid for the title ; and that, if it did, recovery for a larger amount than the pecuniary consideration mentioned in the deed to the plaintiff, could not be effected.

His Honor over-ruled the objection, and directed the jury to assess damages for the plaintiff, not exceeding the considerations paid by him — -that these damages should •be commensurate in amount with the value of the premises, conveyed by the defendant to Fagan, from which the plaintiff’ had been evicted.

There was a verdict for the plaintiff, and a rule for a new trial, on the ground of improper testimony, admitted to prove the considerations in Guyther’s deed to Fagan. The rule was discharged, and judgment being rendered for the plaintiff, the defendant appealed.

Heath, for the plaintiff.

A. Moore, for the defendant.

Daniel, ,T,

The defendant obtained a rule for a new trial in this case, because the Court permitted the plaintiff to prove by parol, that the consideration of the conveyance of the land from Guyther to him, was for more than one dollar. The consideration, mentioned in the deed, is one dollar, “ and for other considerations hereunto moving.” In Jones v. Sasser, 1 Dev. and Bat. 452, this Court said, that if one consideration is specified in the deed, and others referred to in general terms, it is competent to shew them forth in evidence. We think that the testimony was properly admitted, and that the judgment must be affirmed.

Pee Cueiam. Judgment affirmed.