Emmons v. Littlefield

The action was continued nisi, and the opinion of the Court afterwards drawn up by WestoN C. J. According to the case of Steele v. Adams, cited in the argument, the plaintiff is estopped to deny the receipt of the consideration stated in the deed, upon which the defendant relies. But he is not estopped to prove, that there were other considerations, than that expressed. The authorities, to establish this position, are collected and cited in the case of Tyler v. Carlton, 7 Greenl. 175, to which we refer. It is very clear, that the deed did not express the whole consideration. That deed conveyed four tenths of the Balize township, for the consideration therein expressed of three hundred dollars. But by the con [236] tract of August, 1829, the bonus alone, for two tenths only, amounted to that sum ; in addition to which, the defendant was to pay for those two tenths, what the plaintiff and Smith were to pay therefor to those who held under Bingham. This is under the hand of the defendant, and is not controverted or denied. The deed is evidence of payment as far as it goes; but it evidently states but a part of the consideration. The plaintiff and Smith were by the contract to give a deed, when the defendant paid. They did give a deed. This may by implication, not by estoppel, be evidence that the defendant had paid. But it is an implication, which may be rebutted. It is open to inquiry. They agreed to give a deed, when paid ; but they might give it before. Smith, the witness, whose competency is now conceded, was agent for the plaintiff; and he testified, that at the time of the trial, there was due from the defendant the balance found by the verdict. In the opinion of the Court, the legal objections made by the defendant cannot be sustained. Judgment on the verdict.