Opinion
07-11-1908
VOIGT et al. v. DOWE et al.
Prank E. Bradner, for complainants. Nathan Kussy, for defendants.
Bill by Frank Voigt and another, executors, against August H. Dowe and others. Bill dismissed.
Prank E. Bradner, for complainants.
Nathan Kussy, for defendants.
STEVENS, V. C. The complainant's testatrix made a deed of land to the defendant Dowe, expressed to be for the consideration of $2,000, the receipt of which was, in the usual, formal language, thereby acknowledged. The complainants bring suit for the consideration money, alleging its nonpayment. The defendant in his answer admits that the money was not paid, but he avers that the real consideration was natural love and affection.
The proof sustains the answer. The contention is that it is competent to contradict the writing for the purpose of showing nonpayment, but that it is not competent to vary it for the purpose of showing what the real consideration was. I have read with care the cases referred to in the brief of counsel, but I cannot find in them any support for the very inequitable proposition for which he contends, viz., that so much of the consideration clause as makes against complainants may be disproved, and so much as makes for them cannot. As the matter appears, either on the face of the deed standing by itself or on the proof standing by itself, the intent of the grantor was not to subject the grantee to a future money payment. It would be strange, indeed, if, by an arbitrary exclusion of part of the evidence, he should be subjected to it.
The cases in this state are all one way, and they hold "that the true consideration of a deed may be shown by parol, though it vary from that expressed; but not to vary or enlarge the grant." Morris Canal v. Ryerson, 27 N. J. Law, 457; Herbert v. Scofield, 9 N. J. Eq. 492; Speer v. Speer, 14 N. J. Eq. 240; Silvers v. Potter, 48 N. J. Eq. 547, 22 Atl. 584; Hattersley v. Bissett, 51 N. J. Eq. 597, 29 Atl. 187, 40 Am. St. Rep. 532.
The bill should be dismissed.