Dearborn v. Morse

Appleton, C. J. The defendant, by deed of warranty, conveyed to the plaintiff .a tract of land incumbered by an outstanding tax. The plaintiff, being compelled to pay the same for his own protection, has brought an action on the covenants of warranty in the deed to him. [211] Tlie defendant offered to show that before and at the time of the making the deed, the plaintiff agreed to pay the taxes in question. The offer was, in effect, to prove an additional consideration to that expressed in the deed. An agreement made by the grantee, at the time of the sale and conveyance of land, to pay a sum additional to that expressed in the deed is valid and binding. Tyler v. Carleton, 7 Greenl. 175; Nickerson v. Saunders, 36 Maine, 413. So where the purchaser of real estate, at the time of the conveyance, promised the seller to pay the taxes assessed thereon for the current year, and on being notified of the assessment, neglected to pay the same, and the seller, thereupon, himself paid the taxes; the latter was held to be entitled to recover the amount so paid without a previous demand. Brackett v. Evans, 1 Cush. 79. As is well said by Metcalf, J., “ a party who receives a grant of land, on his promise to pay for it, cannot avoid payment by showing that his promise was not in-writing.” It matters not whether this promise relates to a part or the whole of the consideration. The amount of the taxes were a part of the consideration of the conveyance remaining in the plaintiff’s hands to be specifically appropriated. They were so appropriated. Whether the defendant had paid the taxes with the money therefor received from the plaintiff, or the plaintiff paid them in pursuance of his contract, can make no difference. In either case, they were a part of the price of the land conveyed, and were, in fact, paid by the defendant. The evidence offered should have been received. Nxc&ptions sustained. Cutting, Kent, Walton, DicKeeson, and Tapley, JJ., concurred.