Henderson v. Henderson's Ex'rs

• Decision Date: 31 January 1850
• Citation: 13 Mo. 151
• Parties: HENDERSON v. HENDERSON'S EXECUTORS.
• Court: Missouri Supreme Court

13 Mo. 151

HENDERSON

v.HENDERSON'S EXECUTORS.

Supreme Court of Missouri.

January Term, 1850.

APPEAL FROM PLATTE CIRCUIT COURT.

HAYDEN & TODD, for Appellants. 1. Dower of the grantor's widow, is an incumbrance covenanted against by a general warranty deed. 4 Mass. R. 629; 10 Mass. R. 313; 22 Pick. 447. 2. The damages in such case is the amount paid for the dower; ibid. and 7 Johns. R. 358. 3. If the deed was made with fraudulent intent, neither the grantor nor his representatives can avoid it. 2 Bibb, 91; 4 Bibb, 65. 4. The return of a deed to grantor, or its destruction cannot avoid the deed. 4 Wend. 474. 5. The defendant's evidence should have been rejected and instructions of defendant refused. The acknowledgment made in the deed of payment of the consideration cannot be contradicted by the grantor or those claiming under him, for the purpose of destroying the effect of the deed. 16 Wend. 460; 2 Hill, 554; 4 Cowen, 427; 7 Johns. 341; 2 J. J. Marsh. 420; 3 J. J. Marsh. 167; 1 Binney, 518-19; 1 Shep. 216; 3 Shep. 118; 2 Harr. 501; 5 Porter, 498; 2 Bibb, 71; 15 Wend. 518; 4 Bibb, 65; 5 Wend. 474.

NAPTON, J.

Perman Henderson brought an action of covenant against the executors of his father, John Henderson, upon a deed of bargain and sale executed by the latter to the former, conveying a certain tract of land in Platte county. The deed contained the words “grant, bargain and sell,” and a covenant of general warranty. The receipt of $766, the consideration of the sale, was acknowledged in the deed.

The breach of covenant assigned was the incumbrance of the dower of John Henderson's widow (the said John having died after the execution of the deed), and this incumbrance was alleged to be worth two hundred dollars, which was accordingly paid to the said widow by the plaintiff.

Upon the trial the defendant introduced evidence, the tendency and object of which was to prove that there was no consideration passing from John Henderson to his son, the plaintiff for this conveyance--that in reality it was merely designed to remove an obstacle which the retention of the title by the father was supposed to present to the allowance of a pre-emption which he had in view--and that upon the accomplishment of this purpose, it was understood and agreed by both parties that the deed should be canceled or the title re-conveyed. To this evidence the plaintiff objected; but it was permitted to come in and the plaintiff took an exception to the ruling of the court. Instructions were given, but they are not preserved on the record. The defendant had a verdict and judgment.

The only question which the record presents is the one growing out of the admission of the defendant's testimony. How far the ordinary clause in a deed, acknowledging the receipt of the consideration money, ought to preclude all parol evidence to show the real consideration, either as to amount or character, is a question upon which the decisions have not been uniform. ^(a) Where the action is such that the amount of purchase-money paid becomes material, and the deed is not otherwise called in question, a majority of the American cases will be found in favor of the admissibility of such evidence. Such proof has usually been allowed in actions for the purchase-money--though in the courts of North Carolina a different practice has been rigidly adhered to. So in actions upon a covenant of seizen, as the amount of damages must depend upon the real consideration paid for the land, the formal receipt in the conveyance has not been considered conclusive. Moore v. Shattuck, 4 N. Hamp. R. 229. But where the operation of the deed, in respect to the interest or estate purporting to be conveyed, is sought to be affected, such testimony is inadmissible. If the object of the testimony be to alter the effect of the deed in any other particular except the mere receipt, it cannot be admitted.

In the present action, the amount of the consideration and the fact of its payment or non-payment, were matters entirely...