#### Rufus Davenport *versus*Josiah Mason.

Where a deed conveying land contains nothing touching the consideration or Uic payment of the purchase money; although the law will presume that payment was made, yet this presumption, being a species of evidence relating to matter of fact, and not arising from the construction of the deed, may be repelled by oral testimony.

A paroi agreement for the conveyance of land is not absolutely void by the statute of frauds; but if any act has been done, in part execution of the agreement, which would not have been done but on account thereof, which was done with a view to the agreement, and which is prejudicial to the party doing it, the parties are not permitted to treat the agreement as a nullity.

Assumpsit on the usual money counts. The defendant pleaded the general issue, and the statute of limitations.

At the trial before *Putnam,*J., November term, 1816, the plaintiff stated that the defendant and others associated with him, before the year 1805, for the purchase of several parcels of land in *Cambridgeport,*which were to be held by some in trust for all of them ; that each agreed to pay his proportion of the price, and was to have his share of the benefit, the whole property being divided into a hundred shares, and being called “ the one hundred share estate ; ” that the defendant agreed to take and pay for four shares, and the plaintiff took fifty-five shares; that the plaintiff paid several sums of money for the defendant, which' became due on the *84original purchase of his four shares, and for which this action was brought.

After this association was formed, the partners executed an agreement under their hands and seals, dated the 5th of January, 1805, which came up in the case, specifying the several parcels of land purchased, and to which of the * associates they had been respectively conveyed, and the severa. portions or shares each partner was to be interested in; and, among the rest, the plaintiff was to have fifty-five, and the defendant four, hundredth parts; and covenanting to hold all the said lands in trust, each for the others, in the proportions specified; to manage, divide, or sell, the same according to the will of a majority in number and interest; to account for and pay over all the income from rents, sales, or otherwise; and to bear and pay their respective proportions of the expenses of roads, and other improvements, which should be made by agreement of the parties. But the agreement contained no covenant for payment of their several shares of the original price of the land.

*R. Makepeace,*

one of the said associates, testified that the plaintiff paid the sum of 400 dollars to *A. Boardman,*88 dollars to *A. Holmes,*and 40 dollars to *J. & J. Belknap,*in the purchase of part of the lands, which sums the defendant ought to have paid as his four hundredth parts of the consideration for the lands so held in trust for himself and the others. These lands were purchased on a credit of ten years, payable by several instalments. The witness was the agent of the company until the year 1808, until which time the defendant paid his instalments.

The land purchased from *Boardman*was conveyed to the plaintiff, and he held the same in trust as aforesaid; and, to secure the payment of 7500 dollars, part of the consideration, he mortgaged a part of it to *Boardman.*This mortgage was finally paid by the plaintiff, by conveying to *Boardman*a part of the land purchased of him, together with rights in roads, canals, &c.; and a part of the interest had been paid by the plaintiff in money The defendant was entitled to four hundredth parts of 13| acres, part of said purchase, of which the plaintiff had so conveyed ninety hundredths to *Boardman.*The said mortgage was discharged on the 31st of October, 1815.

The witness further testified that, while he was agent, several lots of land, held as aforesaid, were divided and sold * without any regard to the original shape of the same, and the defendant had his share of the proceeds; that a part of the *Boardman*lot had been assigned to the defendant, which he still held in severalty, and for which he had accounted to *85the company; and there were two deeds produced, dated respectively in July, 1806, and January, 1808, by which certain lots, part of the purchase from *Boardman,*were conveyed by the plaintiff and *Makepeace*to the defendant in severalty, and the sums mentioned as the consideration in the deeds were charged to the defendant in his account with *the hundred share estate ;*and *Makepeace*testified that the said consideration was not otherwise paid, and that it was agreed that each proprietor should pay his proportion of the price of the land purchased, as the several instalments should become due.

It appeared that the plaintiff had obtained partition of *the hundred share estate,*and that the defendant’s four hundredth parts had been assigned to the plaintiff, with the other shares which he held for himself and others. The four hundredth parts he holds in trust for the defendant, and is ready to divide and assign the same to him in severalty for his own use. The plaintiff also gave in evidence a deed from the proprietors to the *Cambridgeport*meeting-house corporation, executed by the defendant and others on the 15th of April, 1806, reciting that the plaintiff had paid *Boardman*for the land conveyed to the plaintiff, and held by him in trust as aforesaid.

The plaintiff also proved, by the testimony of a Mr. *Bent,*that, on the 4th of October, 1815, he, at the plaintiff’s request, called on the defendant and requested him to pay to the plaintiff the money he had paid to *Boardman,*Holmes, and *Belknap;*that the plaintiff coming soon after, he and the defendant agreed that they would make a settlement of that matter, and the defendant promised to pay his share of those debts when the plaintiff should have settled with *Boardman,*so that the estate should be disencumbered from the plaintiff’s mortgage.

* The plaintiff also proved, by a Mr. *Shuttlesworth,*that the defendant told him, in the autumn of 1813, that he was alarmed on account of the then-subsisting mortgage to *Board-man,*and should not make a settlement with the plaintiff until he had settled with *Boardman.*

The plaintiff also gave in evidence a paper, dated August 3, 1814, signed by the defendant, recognizing *the hundred share estate,*stating that he had bought some grass which grew upon it, and promising “ to allow, in settling their hundred share accounts, for the four hundredths indirectly interested as per agreement.”

The defendant objected to the paroi evidence aforesaid, on the ground that the agreement of the parties was upon a sealed instrument ; that the evidence was contradictory to the deeds ; and also, that the contract concerned the sale of real estate. But the objection was overruled by the judge.

*86The defendant also offered evidence to prove that the plaintiff paid his mortgage to *Boardman*in land, at a price greatly exceeding the cash value. This was rejected, on the ground that *Boardman*had given credit to the plaintiff, and that if he had chosen to give his debt to the plaintiff, it was a matter between them, and the defendant was not entitled to any benefit from the bounty.

It appeared, also, that *Holmes*recovered a judgment against the plaintiff and *Makepeace*for 2700 dollars, and execution thereof was levied, on the 11th October, 1813, on a part of the real estate held by the plaintiff, in trust as aforesaid, for 985 dollars; and that the plaintiff and *Makepeace*had mortgaged ten acres of *the hundred share*estate, held by them in trust as aforesaid, to said *Holmes,*who had taken possession of the same, and the mortgage was foreclosed, the mortgagee having been three years in possession. But the plaintiff, before the foreclosure, had offered and urged a division of the then undivided part of *the hundred share estate,*that each might hold his share in severalty; and the defendant contended that four hundredth parts of the value * of that land should be allowed him in this action. To this the plaintiff assented, provided the defendant would release his four hundredth parts of the estate levied upon by the said execution ; but the de fendant did not offer any such release.

It appeared that there was a sufficient quantity of *the hundred share estate*remaining undivided, to satisfy the four hundredth parts belonging to the defendant.

The verdict was for the plaintiff. If the paroi evidence was properly admitted, nevertheless if the defendant ought to have been permitted to prove that the plaintiff had paid *Boardman*in land, at a price beyond the cash value, a new trial was to be granted. If the paroi testimony which was admitted should, have been rejected, the plaintiff was to become nonsuit, and the verdict, in either event, to be set aside. But if the paroi evidence was admissible, yet if the rule upon which the verdict was made up was erroneous, *viz.,*calculating interest upon the sums which the plaintiff proved that he had paid, from the time of payment to the day of the verdict, without any deduction on account of the land taken by execution by *Holmes,*leaving the defendant to take his remedy against, the plaintiff as his trustee, and to have his four hundredth parts divided and assigned to him at his pleasure, then the sum found by the verdict was to be reduced, and judgment to be entered by the Court, for such sum as the plaintiff was by law entitled to recover.

The cause was shortly argued, at the last March term in this county, by *Amory*for the plaintiff, and *Fuller*for the defendant; *87and being continued for advisement, the opinion of the Court was now delivered by

Wilde, J.

We have had considerable difficulty in this case, and, finally, have not all of us been able to agree in opinion. The facts are so complicated, and the agreements and intentions of the parties have been, in some respects, so indistinctly disclosed, that it is not surprising there should have been some hesitation amongst us. A majority of the Court, however, have agreed in the opinion, which I will now state, with our reasons.

* In the argument of the cause, three objections were made by the counsel for the defendant.

1. That the paroi evidence in the case ought not to have been admitted, because it was contradictory to the terms of the deed of the parties.

*2.*That the paroi agreements are void by the statute of frauds.

3. That the rule of estimating damages, laid down by the judge, is erroneous.

As to the first point, there ran be no doubt that paroi evidence is inadmissible to contradict or vary the terms of a deed. But paroi evidence may be admitted to establish an independent fact, or to prove a collateral agreement incidentally connected with the stipulations of a deed, or other written contract. So presumptions of law, in relation to matters of fact, may be repelled by oral testimony. This rule of evidence has been frequently laid down, and it accords with the maxim, *“ Stabit presump tio donee probetur in contrarium.”*And it seems reasonable that presumption, which is not founded on the basis of certainty, should yield to evidence, which is the test of truth. It was said by Lord Mansfield, in the case of *Brady*vs. Cubitt, (1) that all presumptions might be rebutted by every sort of evidence; and it was held, in that case, that an implied revocation of a will by a subsequent marriage and the birth of a child, might be rebutted by paroi evidence. This case has never been overruled, although the grounds of the decision may be considered as, in some respects, shaken by the cases of *Doe, ex Bern. Lancashire,*vs. *Lancashire,*(2)*Kenebel*vs. *Scrafton,*(3) and *Goodtitle*vs. *Otway.*(4) But the general principle, that presumptions may be repelled by oral testimony, has not been controverted In *Goodtitle*vs. *Otway,*A, by his will, devised lands to B, and afterwards, upon his marriage, conveyed them to trustees to other uses; and it was held, that paroi testimony was not admissible to show that A, did not intend to revoke his will; the court being of *88opinion that the conveyance amounted to a revocation by * operation of law, upon the ground of a *presumptio juris et de jure*not to be repelled by any circumstances to be set up in evidence. And undoubtedly such a presumption, if presumption it may be called, which was but a construction of the deed of conveyance, ought not to have been rebutted by paroi evidence contradictory to the terms of the deed.

In the case of *Lake*vs. *Lake,*(5) paroi evidence was admitted to rebut a rule of equity; and in the cases of *Lord Altham*vs. *The Earl of Anglesea,*(6) and *Roe*vs. *Popham & Al.,*(7) it was de-' termined that, if a fine be levied, and no uses are declared, paroi evidence may rebut the resulting use to the conusor in favor of the eonusee.

It seems also to be settled that paroi evidence is admissible to show the consideration of a conveyance, when the same is not particularly expressed in the deed. (8)

These principles and decisions, I apprehend, are well established ; and the only question that can be made is, whether they are applicable to the case under consideration.

The deed of trust of 1805, the terms of which are supposed to be repugnant to the paroi evidence, recites that the contracting parties, holding divers tracts of land in severalty, had come to an agreement to hold the same in trust for each other, in the proportions therein stated; and then follow mutual covenants between the parties, that they will severally stand seised of their respective tracts of land in trust for each other, according to the terms of the contract. This is the substance of the deed; and it is material to remark that it is silent in respect to the consideration. The substance of the paroi evidence is, that it was agreed that the defendant should pay a part of the purchase money due from the plaintiff to *Boardman*and others, from whom he purchased, on a long credit, some of the land brought into the common stock, and which was to be paid by instalments; and that the defendant, at different times before and after the execution of the deed of trust, promised to pay his proportion of the instalments.

* It is impossible to say that this evidence is repugnant to the deed; for nothing can be collected from the deed, touching the consideration or the payment of the purchase money. It is true that the presumption is, that payment was made, or satisfactorily secured, by each associate, in proportion to his interest in the common property. But this presumption, *being a species of**89*evidence in relation to matter of fact, and not arising from, the construction of any clause in the*deed, may be repelled by oral testimony.

There would be more difficulty in the application of the rules of evidence, if the deed had set forth a nominal consideration, with an acknowledgment of payment, which is sometimes done. It might, in such a case, be doubted, perhaps, if any additional consideration could be averred. (9) *(a)***But when the usual clause, in relation to the consideration, is altogether omitted, we think that the agreements of the parties, in this respect, may be shown by the oral proof, without violating any known rule of law; which we should be sorry to break in upon, whatever may be the supposed equity of the case.

As to the *second*objection, it must be admitted that the original verbal agreement was within the statute of frauds. But it will be remembered that such an agreement is not merely void; for if it be executed, or even partly executed, the parties are not permitted to treat it as a nullity. The statute does not wholly vacate the contract., but only inhibits all actions brought to enforce it. By the consiruction uniformly given to the statute, its operation has been limited to such executory contracts as have been in no substantial part executed. Innumerable contracts have been enforced, in chancery, on this ground ; and a like construction seems to have been recognized by the courts of law, which ought certainly to be adopted here, where we have no chancery powers to enforce the performance of a verbal contract. In the case of *Crosby*vs. *Wadsworth,*(10) Lord *Ellenborough*recognizes this distinction as a well-settled principle, and the judgment of the court appears to turn upon * proof that the paroi agreement set up in that case had been discharged before it had been in any part executed.

As to who,t shall be said to be a part execution of a contract, sufficient to take it out of the statute, there has been some doubt. The general principle is that the act or acts, constituting such part performance, must be such as would not have been done but on account of the agreement; that they be done with a view to perform it, and that they be prejudicial to the performing party. Thus, in the *Earl of Aylesford’s*case, (11) there was a paroi agreement for a lease of twenty-one years, upon which the lessee entered and continued in possession for six years, after which the earl brought a bill against him, to execute a counterpart for the residue of the *90term. The lessee pleaded the statute of frauds ; and it was held that the agreement was binding, the same having been partly performed. So the delivery of possession has been considered as a sufficient execution, in part of an agreement, to authorize the court to decree a specific performance. (12)

In the present case, it appears that the plaintiff has wholly performed his part of the agreement. The deed of trust has been executed which secured to the defendant his proportion of the common property. The plaintiff has removed the encumbrance on the lands held in common, and the defendant has received sundry deeds of the common estate to be holden in severalty — he in the mean time, for three years at least, while the hope of a profitable speculation remained, treating the agreement as obligatory. It seems impossible to imagine a stronger case of equity on the one part, or a more manifest attempt, on the other, to shelter fraud under the provision of a statute made for its suppression, (a)

But supposing that the statute of frauds did interpose, to prevent the enforcing of the first agreement; nevertheless, the action may be maintained on the subsequent promise. For it seems that, several years after the deed of trust, and after the defendant had obtained the assignment of several lots * in the tract of land purchased of *Boardman*by the plaintiff and *Make-peace,*the defendant became alarmed on account of *Boardman’s*mortgage, and thereupon promised the plaintiff to settle with him, and to pay his proportion of the instalments, provided the plaintiff would remove *Boardman’s*mortgage : —soon after which it appears that the mortgage was released, the amount due having been paid by the plaintiff. Now, this promise is obligatory, if it was made on sufficient consideration ; for there is no pretence for saying that it is affected by any of the provisions of the statute of frauds. Nor can there be any doubt, in my apprehension, that sufficient consideration appears, to support the promise. The payment of the mortgage was sufficient, for it relieved the defendant’s land from an encumbrance ; and the moral obligation, imposed upon him by the original agreement, was sufficient, for a moral obligation, although it cannot be enforced by a court of law or equity, is nevertheless a good consideration for an express promise. (13) (b) As if a man *91promise to pay a just debt, the recovery of which is barred by the statute of limitations ; or if a man promise to perform a secret trust, or a trust void, for the want of writing, by the statute of frauds In such cases, although the promise give a compulsory remedy, where there was none before either in law or equity, yet, as the promise is only to do what an honest man ought to do, the ties of conscience, say the authorities, upon an upright man are a sufficient consideration. So, if there be a benefit to the party promising, or a prejudice or trouble to the party to whom the promise is made, it will constitute a sufficient consideration. On either ground, therefore, the consideration in this case is good, and the promise is valid.

The remaining question is, whether the rule of damages was correctly stilted by the judge.

The objection is that, as the debt due to *Boardman*was paid by a part of the real estate, held in trust for the joint account of the associates, and at a price exceeding the cash value, a deduction should be made from the defendant’s * instalments, so that his proportion should correspond with such cash value.

If the debt due to *Boardman*had been jointly due from the plaintiff and defendant, — or if, in consequence of the plaintiff’s conveyance to *Boardman,*the defendant had been prevented from having his full share in the common property, — there would be great weight in the objection. But the *Boardman*estate was purchased by the plaintiff on a credit payable by instalments, and it was mortgaged to secure a part of the consideration. The plaintiff was bound to pay the mortgage, and *Boardman*never had any claim against the defendant. The associates agreed that this estate should be placed in the common fund, if it may be so called, at the price at which it was purchased of *Boardman;*and they agreed to contribute their proportion to the plaintiff, as the instalments should become due ; and most of the associates, excepting the defendant, have paid accordingly. We see no reason why the neglect of the defendant should give him an advantage over his associates.

The plaintiff has satisfied *Boardman,*has obtained a discharge of the mortgage, has done all that he originally undertook to perform, *viz.,*he has placed this real estate, free from encumbrance, in the *92common fund ; and the defendant has no light to inquire into the terms on which this relief was obtained. The misfortunes oí the plaintiff furnish no excuse to the defendant for the breach of his agreement. The defendant has received his share of the. sales, has had a portion of the joint property assigned to him in severalty, and may have his remaining proportion assigned in the residue of the lands, whenever he pleases. He ought, therefore, we think, to be answerable for what he originally undertook to pay, with interest for the non-payment, in nature of damages. That sum has been ascertained by the jury, and the judgment is to be according to the verdict.

(1)

 Doug. 31.

(2)

 5 D. & E. 49.

(3)

 2 *East,*530.

(4)

 2 *H. Bloch.*56.

(5)

 1 *was.*

(6)

*Gilb.Rev*16.

(7)

*Doug.*25.

(8)

*Shep. Touch.*222, 510.

(9) (a)

3 *D. & E.*474. — *W. Black. Rep.*1249. — 1 *Johns.*140. — 1 *Co.*176, *a. (a) Arms vs. Ashley, A Pick.*71. — *Howell vs. Delancey,*4 *Cowen, 427.*— *Maigley*vs. *Hauer,*7 *Johns. R.*341.

(10)

 6 *East,*602.

(11)

 2 *Strange,*783.

(12)

 2 *Vern.*455. — *Prec. in Chan.*519, 561 — 3 *Ves. Jun.*378

(a)

 Vide, contra, *Kidder*vs. Hunt, 1 *Pick.*328.

(13) (b)

*Cowp*290. (b) Vide *Barnes*vs. *Hedley,*2 *Taunt.*184.— Lee vs. *Muggeridge,*5 *Taunt.*36.— *Clark*vs. *Herring,*5 *Bin.*33.— *Willing*vs. Peters, 12 *S & R.*177. — *Andover S. P Corporation*vs. *Gould,*6 *Mass. Rep.*40. — *Salem*vs. Andover, 3 *Mass. Rep*348. — In *Littlefield*vs *Shee,*2 *B. & Ad.*811, Lord *Tenterden*said, " The doctrine that a moral obligation is a sufficient consideration for a snbseouent promise, is one which should *91be received *with some*limitation.” A writer in the Legal Examiner, vol. iii. p. 105, says, “ A review of the cases will, we think, convince our readers that the facts out of which the moral obligation arises must be such, that there is either a benefit to one party or a detriment to the other. On this subject we refer our readers to the cases of *Hawkes*vs. Sounders, *Cowp.*290. — *Wennal*vs. Adney, 3 *B. &*P. 249, note. — *Atkins*vs. Barnwell, 2 *East,*506. — *Seaman*vs. Price, 2 *Bingh.*437. —*Hyeling*vs. *Hastings,*1 *Ray.*389. — *Harris*vs. *Watson, Peak.*72. — *Brown*vs. Crump, *1 Marsh*567.” And see *Mills*vs. Wyman, 3 *Pick.*207.