GRAVES v. CARTER, 9 N.C. 576 (1823) GRAVES v. CARTER. — From Caswell.Supreme Court of North Carolina December Term, 1823. Parol evidence shall not be received to contradict an averment, in a deed of the payment of the purchase money. ASSUMPSIT to recover the balance of the purchase money of a tract of land, which it was alleged plaintiff had sold to defendant.
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GRAVESv. CARTER,9 N.C. 576(1823)
GRAVES v. CARTER. — From Caswell.
Supreme Court of North Carolina
Parol evidence shall not be received to contradict an averment, in a deed of the payment of the purchase money.
ASSUMPSIT to recover the balance of the purchase money of a tract of land, which it was alleged plaintiff had sold to defendant. The pleas were the general issue and the acts of 1819, entitled "An act to make void parol contracts for the sale of land and slaves." Upon the trial below the plaintiff proved that he and the defendant had entered into a parol agreement for the sale and purchase of a tract of land, andPage 323that it was agreed between them that the land should be surveyed, that a deed should be then made, and the purchase money paid by delivering to the plaintiff a bond which defendant held against Thomas Haralson, for $600, and interest thereon, and for the balance (577) a note negotiable and payable at the Milton branch of the New Bern Bank. After the land was surveyed the plaintiff made and executed a deed and delivered it, with a plat of the survey, to Bedford Brown, who was, as he alleged, agent of the defendant to receive the deed. The deed remained in Brown's possession for ten or twelve days, when he went to the defendant's house and informed her that the plaintiff was anxious to close the business, and asked her for the bond of Haralson; she gave it to him, and he afterwards delivered it to the plaintiff. Brown at this time did not give her plaintiff's deed, but thought it probable that he mentioned to her the fact of his having it. Some days afterwards the defendant informed Brown that she would not comply with the contract or receive the deed, and it remained in Brown's possession until the trial of the cause.
On the trial plaintiff gave the deed in evidence, and it contained a recital that for and in consideration of the sum of $2,538, to him in hand paid by the defendant, "the receipt whereof is hereby acknowledged," he, the plaintiff, bargained and sold to the defendant the tract of land, etc. For the defendant it was contended: (1) That Bedford Brown could not be constituted an agent to accept the deed except by some writing signed by the defendant. (2) That if his acceptance of the deed did bind the defendant no parol evidence ought to be received to contradict the averment of the deed that the purchase money was paid to the defendant. This objection was overruled by the court, and parol evidence was admitted to show that the balance of the purchase money had not been paid, and the court instructed the jury that if the evidence satisfied them that the defendant had appointed Bedford Brown her agent to accept the deed, though the said appointment were not in writing, she was bound by his acceptance. A verdict was returned for plaintiff, and the case stood before this Court on a rule to show cause wherefore a new trial should not be granted.
Murphy in support of the rule.Ruffin contra.
TAYLOR, C. J.
Brocket v. Foscue,8 N.C. 64, wherein this (580) point occurred, was decided in conformity with the clear rule of law that parol evidence shall not be received to contradict a deed; and however reluctant the court may be to apply a rule which producesPage 324injustice in the particular case, yet the community is benefited upon the whole by an adherence to the law. In addition to the authorities cited in that case may be addedRountree v. Jacob, 2 Taunt., 141, where it was held that in an action for money had and received, if the defendant shows a deed of assignment of the money to himself, and a receipt for the consideration money indorsed, it is a good discharge, though there is strong evidence of suspicion that the consideration is falsely recited, and that the money never was paid. Though in a court of equity the vendee, who pays no part of the purchase money, will be considered as a trustee; yet in law the receipt cannot be got over, unless it is merely fraudulent.Henderson v. Wild, 2 Campb., 561. There must be a
PER CURIAM. New trial.Cited: S. c.,12 N.C. 75;Rice v. Carter,33 N.C. 300;Shaw v.Williams,100 N.C. 280.