Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-04-09


bv the pIeadings, or sought to be contro-
verted or defeated by the testimony offered.
But. 70 the contrary, the tendency Of the
offered testimony is in affrmance Of the
contract touching both propositions. But
II is insisted the plaintiff is estopped from
knowing different consideration from the
one expressed in the instrument by the re-
citals therein, and thai IN no event can
parol evidence be admitted to show a diff
ferent consideration for the making Of the
deed than the one expressed.
We do not think either proposition can
be maintained. Every contract or deed
must be supported by either a good or
valuable consideration, and although the
consideration must exist, still il need not be
inserted in the deed. When expressed it
is only priIna facia evidence of the amount
and may be varied by parOl proof II a
consideration be expressed upon the face
of the deed, the grantor is thereby estopped
and will not be permitted 10 aver against
the deed itself, unless there be fraud or
illegality in it, 4lh Kent 465; 9TH Bark.
On. y ass; 18th Conn. 383; I'd Wills 547;
aud although the granior il estopped by
the recital in the deed from denying the
consideration expressed, yet he is not
estopped from proving there were other
considerations than the one expressed in
the deed, l3 Maine, 233, and parol evil
dence may be given to vary the consider
alton as expressed, ii Johns, 20; 20
Johns. 338; l6 Wend. 400; IL Mass. 249 /;
Conn. 3l4.
In the case Of Goodspeed rs. Butler, 46
Maine l4l, il was held that the only effect
of the usual clause acknowledging a con-
sideration paid, ia 10 estop the grantor
from denying that there was any consider
alton. For every other purpose it may be
explained varied or contradicted by parol,
and this. it seems TO us, is a correct and
exact statement Of the principle. In the
case Of Whitby a a., u.s., Whitby
ei a., 4 Sneed, 473, which was a
bill in equity to enforce the specific
performance Of contract; Richardson
Whitby had executed bond by which he
contracted TO convey to John Whitby GER
tain land. The bond recited; "Know all
men whom it may concern, that I, Rich.
ardson Whitby, of the State of Tennessee,
Shelby county, fer and in consideration OF
the sum Of - received, do obligate my
self" etc. a specific execution Of the con-
tract was resisted upon the ground that
the title bond was not Of itself sufficient
writing. under the statute of frauds and
periuries, because il did not disclose the
consideration. This court held that in
constituting the statute the consideration is
not TO be regarded as part of the contract,
but merely as an inducement to II, and
therefore no principle of law is violated by
the admission of parol evidence of the con-
sideration whenever it becomes necessary
10 be shown.
Parol evidence is offered in this case, not
for the purpose of varying the contract or
avoiding the deed, but for the purpose OF
showing the true consideration, and this
we think the grantor most clearly has the
right TO do by parol evidence; more espci-
ally in a case like the present where the
consideration expressed is merely nominal.
The recital in the instrument Of the con-
alteration as we have already seen is only
priBa facie evidence Of the amount, and
may be varied by parol proof, and the
grantor is not estopped from proving these
and other considerations than those eK-
pressed.
As a general rule "parol contemporaries
ous evidence is inadmissible to contradict
or vary the terms of a valid written insiru-
ment," and this rule has been applied gen.
orally, if not universally, TO simple con-
tracts in writings, to the same extent and
with the same exceptions as to speclalltles
or contracts under seal. lst Greenleaf on
Evidence, sec 275, 276.
But this rule is not inlringed by the in
PRODUCTION Of parol evidence showing the
instrument never had any legal existence
or binding force either by reason Of fraud
or want Of consideration and parol evi-
dence is also admissible under this general
rule contradicting or explaining the instru-
ment in some of its recitals of facts when
such recitals do not on other principles
estop the party to deny them. lst Green
leaf on Ev. sec. 282, 284.
But we think the testimony was admiS-
sible upon another ground. The object OF
the proof was to establish an agreement be-
tween the parties, made subsequent to the
making of the deed, and the general rule
before stated is not infringed by the admis-
sion of oral evidence TO prove new and
distinct agreement upon a new considera-
ton, whether il be as a substitute for the
old or in addition to and beyond IT. Isl
Greenleaf on Ev. sec 305.
SO upon the whole case we think the
rejection Of the testimony was erroneous,
The judgment will be reversed and the
cause remanded HAWKINS, Judge.
-