Brocket v. Foscue, 8 N.C. 64, 1 Hawks 64 (1820)

June 1820 · Supreme Court of North Carolina

8 N.C. 64, 1 Hawks 64

Brocket v. Foscue.

kFrom Jones.

When a deed for land contains an acknowledgment of the bargainor of the receipt of the consideration, and a clause exonerating the bargainee therefrom, it amounts to a release, and is a bar to an action for the purchase money:

In assumpsit for such purchase money, no parol evidence can be received to shew that it is unpaid; because it is contradictory to the deed.

A bargain and sale is good, although the deed does not express that the consideration money has been paid.

This was an action of assumpsit, in which the Plaintiff declared for the pricé of a tract of land sold and conveyed by him to the Defendant. Upon the trial, it was proved that some months after the deed had been made for the by id, the Defendant acknowledged that a balance of 200 pounds was still due to the Plaintiff, which he was to pay him within two years thereafter. The jileas were, the “ general issue and set offand the Defendant, upon the first issue, relied upon lEc deed, which expressed to be made by the Plaintiff “ for and in consideration of one “ thousand dollars to him in hand paid by the said F. the- “ receipt "whereof the said B. doth hereby acknowledge, and <e thereof doth exonerate the said F. his heirs and executors,” and insisted that it was a release: but the Court held, that the clause in the deed was not conclusive, and that, parol evidence was admissible to shew that the consideration money had not been paid. Tine .Defendant then offered evidences of payments and sets off, subsequent to the period sit which the acknowledgment aforesaid was made, so as to reduce the Plaintiff’s demand to 1171. 10s. for which the Jury gave him a verdict.

The Defendant obtained a rule, for a new trial, upon the ground that the Court ought to have instructed the Jury that the deed contained a full discharge and release ; but the rule was discharged, and judgment entered for the amount of the verdict: whereupon an appeal was taken to this Court.

Gaston, for appellant.

A release is an absolute bar to the. Plaintiff's recovery; and here is one. A release requires no particular form of words; any which declare a renunciation of claim are sufficient.^* An acknowledgment, under hand and seal, that a debt is satisfied, is a good release.^† Here the deed is express, and any evidence, shewing that a part of the purchase money is un paid, is directly contradictory to it, and cannot be received»

Mordecai, on the other side,

cited Phil. Ev. 423, and the cases of Shepperd v. Little, 14, John. liep. 210, and 0’JV‘eale. v. Lodge, 3 liar. and M’Een. Rep. 433, which are both expressly in point. He said, too, that it was every day’s practice among the people to make deeds in that way, without receiving the whole of the purchase money, or taking a separate security by specialty for it, and that it liad always been the understanding of the profession, that ^ cou^ be Recovered on the simple contract.

* Co. Lit. 264, b.

† 9 Rep. 52.

TavxoR, Chief-Justice,

after stating the case, said, that the Defendant contends that the deed, winch contains a receipt and a release, cannot be contradicted by parol evidence. The manifest justice of the claim, and the uncon-scicntious nature of the defence, lias made me desirous to ascertain some solid ground of law on which the former can be supported; but I cannot discover how it is to be done, without breaking in upon the rule, that you cannot by parol contradict a deed.

Two cases have been cited where such evidence has been admitted j but they do not quite come up to this, nor are the reasons lor the decision satisfactory, ft is truly said, that the end of inserting a consideration in a deed is to raise an use, and that the slightest consideration of value is sufficient for that purpose. Still it is not necessary* for the sanio end, that a release should be inserted, nor is it, strictly speaking, consistent with the form of-a bargain and sale, i may go further, and say, that the use will arise without an acknowledgment of the receipt of the consideration; as if a man bargain and sell his land in consideration of so much money, to be paid at a day to come.^* if it be contended, that, although you cannot contradict the consideration so far as it is necessary to the efficacy of the conveyance, yet, for any other purpose, it may be done, it ought first to be shewn, that the only in-dispensible form of stating the consideration is adopted hi this deed.. The deed may still be. effectual with other modes of stating the consideration, Ly which, if it be not paid at the time, the seller’s right to it may be secured and enforced. It might subserve the justice of this case to allow the Plaintiff to recover in the face of his deed, but the precedent would be fraught with mischief to the community. The effect of adhering to the rule of law will only be to make men cautions in executing deeds: but, if it be understood that a solemn acknowledgment under seal is insufficient to prove the payment of money, it is to be apprehended that many perjuries will arise. To the cases cited at the bar, I will add one from 5 Mass. Rep. 67, where a deed of tenant in tail purported to be made for good and valuable consideral ion, but in order to get the judgment of the Court on its effect, the parties agreed, in a case stated, that no consideration was paid. Chief-Justice Parsons observed, that if the parties bad not expressly agreed that there was no valuable consideration, it would have been difficult to get over the express an cements of the deed. There is also a case to the same effect; in 1 Campb. Rep. 392. So the judgment must be reversed, and a new trial granted.

The Court was unanimous, and the judgement was reversed.

* Dyer, 337, a.