Nickerson v. Saunders

Tenney, J. — Though it has been held in this State, that a grantor in a deed of conveyance of land, is estopped to deny that he has received the consideration, which he has expressly acknowledged in the deed ; it is well settled, that it is competent for him to prove an additional consideration not expressed. 414 Tyler v. Carlton, 7 Greenl. 175, and cases cited. With as great propriety, may he receive a sum of money, in the hands of a third person, which by the agreement, made and completed, when the deed was executed and delivered, was set apart and agreed to belong to him. This tends in no degree to contradict the deed ; as between the parties it becomes the property of the grantor, and if it should afterwards be paid to the grantor, the latter would hold it in trust for the former. If the additional sum rests in contingency, the principle is no less reasonable and is equally applicable. In this case the grantor received the full sum agreed upon, as the value of the land, situated as it was at the time of the conveyance. But there was a petition pending for an alteration, or discontinuance of a road, which passed by the land; and it was agreed that whatever sum should be allowed as damages for the alteration or discontinuance of the road, the plaintiff should have as a part of the consideration. The sum was allowed, and received by the defendant. It was at the time of its receipt, the money of the plaintiff, by virtue of an agreement, which was in all respects valid; and he is entitled to recover it in the equitable action of money had and received. Exceptions overruled. Shepley, C. J., and Howard, Appleton and Hathaway, J. J., concurred.