Collins v. Tillou

Ellsworth, J. If the appellant, Ozro Collins, is entitled to recover from the estate of John Tillou, either in law or equity, the judgment of the superior court is correct; for the commissioners on insolvent estates are, in adjudicating upon claims, clothed with the powers of both courts. ■ We do not attach any force to the objection that Collins might not have had a perfect title to the land which Tillou sold for him. It does not lie with Tillou to deny the title of his principal. He was willing to accept the agency and sell the land ; and now for the agent to retain the money on such ground is unconscionable and in violation of long established principles of law. The principal question is, whether parol evidence is admissible to prove the contract claimed to have been made between Collins and Tillou, and to show that the transfer of the land to the latter was made to enable him the better to sell and give the title. It is said, first, that such evidence is contrary to the statute of frauds,- and secondly, that it contradicts the deed of conveyance from Collins to Tillou. We think there is no force in either of these objections. As to the first, we might hold that there had been a part exe [374] cution of the contract, which would take it out of the statute; and so, too, that where land is sold and conveyed, and nothing remains to be done but for the grantee to pay the money, assumpsit will lie without written evidence, as upon an implied contract. And so upon the express promise, as held in New York, Massachusetts and Vermont. See Hodges v. Green, 28 Verm., 358, and cases there cited. Bat the main stress has been laid on the second objection. And here the error of Tillou’s counsel is, that they suppose the contract in dispute to be the contract of sale in the deed, while it is not so. The contract in dispute was made before the deed, and not in it or by it. The deed only follows up the contract by carrying it into execution, and is both subsequent to and in pursuance of it. It is absolute in its form and effect, because it was intended to be so, and could not be otherwise. All that it expresses about the grant being to the use of the grantee, is only a part of the formal title. It has repeatedly been held that a bill of sale of goods is the vendor’s execution of the executory contract of sale, the language of the vendor, not of the vendee. The terms of payment, the counterpart of the sale, are not usually, nor of necessity, a part of the bill of sale. The same is true of a deed of land ; it is not the language of the grantee but of the grantor. This is the doctrine of Belden v. Seymour, 8 Conn., 304, Clapp v. Turrell, 20 Pick., 247, Grunvault v. Davis, 4 Hill, 643, and Linsley v. Lovely, 26 Verm., 123. The last is a well considered and pertinent case. This ig the language of the court: “ The purpose for which a deed is made is not to state the contract between the parties in regard to the terms of the purchase, but to pass the title to the land. The deed is not, strictly speaking, an agreement between the grantor and grantee. It is executed by the grantor alone, and is a declaration by him, addressed to all mankind, inform-. ing them that he conveys thereby to the grantee the land therein described. The object is to pass the title, not to describe the terms upon which the land had been sold, and the mode in which payment was to be made.” Vide Beach v. Packard, 10 Verm., 96; and Lazell v. Lazell, 12 id., 443. [375] The consideration stated in the deed is not conclusive, nor the acknowledgment that it is received. Its entire language is, as we have said, the language of the grantor,— his execution of his prior agreement. Linsley v. Lovely, supra. 1 Greenl. Ev., § 286. A bill of sale, then, or an absolute grant of land, leaves the promise of the vendee or grantee to be proved by parol as best it can, and such proof is not inconsistent with the instrument because it is absolute in form. Were the enquiry this, what is the contract in the deed, as, how many acres are conveyed by it, or what is the nature of the estate, the deed would be conclusive, but quite otherwise when it is not so. Further, if a person makes a fraudulent use of a deed or other instrument received by him in trust, or for some specific purpose, a court of equity will grant relief on the ground of mistake or fraud. Crocker v. Higgins, 7 Conn., 342. There the grantee took the absolute interest in the estate under a parol promise to grant a life estate to the grantee’s mother. The grantee, having received his deed, refused to grant the life estate. The court compelled him to do it. In Morris v. Nixon, 1 How., 118, the court held a deed, absolute on its face, to be a security for a loan of money; which case belongs to a class of cases in the English and American reports, in which the principle is settled, that a person shall not make a fraudulent use of an instrument that is absolute in form, when it was designed for a security only. Parsons v. Camp, 11 Conn., 528. 1 Greenl. Ev., § 286. We regard parol evidence as clearly admissible to show the circumstances under which a contract was. made, and the relation of the plaintiffs and defendants to it, and to each other in respect to it. There is no error iri the judgment of the superior court. In this opinion the other judges concurred. Judgment affirmed.