Bidders v. Riley

Breese, J. The rule contended for by the counsel for appellee cannot be denied, but its application to the present case may well be. We do not understand the testimony offered by the plaintiff in its various phases as presented by him, contravened the rule that the terms of an instrument in writing cannot be varied by parol evidence. It has been decided by this court, that it is competent for a party to show a different consideration from the one stated in the deed as between the parties to it, under peculiar circumstances. Kinzie v. Penrose, 2 Scam. R. 515. In that case the party was permitted to show that the consideration expressed in a deed for two lots of ground, was in reality, the consideration for one only. So it is universally held, that a deed absolute on its face, may be shown by parol to have been intended as a mortgage. All that the plaintiff proposed to prove was, that when defendant received the deed, it was with the express knowledge and understanding that the consideration of fifteen hundred dollars expressed in it applied only to the south half of the quarter section, the defendant well knowing at the time, that the plaintiff had no title to the north half and did not pretend to sell and convey any title to that half. The defendant accepted the deed with that understanding, and it is competent for the plaintiff to show this by parol. In the case of Allen, Adm’r, v. Lee, 7 Indiana Rep., it was held that parol evidence may be given, not to contradict the terms of a written warranty, but to show that the property was taken by the purchaser subject to incumbrances which he knew to exist at the time of the purchase, though they were not mentioned in the deed, and there was a warranty against incumbrances. And so is the case of Leland v. Stone, 10 Mass. Those cases, in principle, do not differ in any essential particulars from this. The jury returned a verdict for the plaintiff for a part of his claim. It seems to us, if he was entitled to recover at all, he should recover the amount of the note and interest, if he makes out his case. The judgment is reversed, and the cause remanded. Judgment reversed.