
    William Townsend vs. Rufus Townsend.
    Where part of the consideration of a deed, which conveys real estate, is the grantee s oral promise to support the grantor during life, and to give back to him a lease of the granted premises for life, and the grantee afterwards refuses to execute such lease, the grantor cannot maintain an action against the grantee to recover damages for such refusal; such action being within the statute of frauds —Rev. Sts. c. 74, § 1.
    Assumpsit to recover a part of the consideration of real estate sold by the plaintiff to the defendant.
    The trial was had in the court of common pleas, and the presiding judge thus reported the case : “ The plaintiff read in evidence a deed made by him to the defendant, dated September 3d 1839, by which he conveyed to the defendant a parcel of real estate in Great Barrington, with the usual covenants of warranty, &c., subject to a mortgage given by the plaintiff to the Massachusetts Hospital Life Insurance Company, to secure payment of $300, which was stated, in said deed to the defendant, to be part of the consideration of ‡ 1300, which the plaintiff acknowledged, in said deed, had been paid by the defendant for said land. The plaintiff then introduced testimony to show that nothing was paid for the land, when said deed was executed; that the consideration was, 1st, the agreement of the defendant to pay said mortgage of $ 300 ; 2d the value of certain real estate which the defendant, previously to said 3d of September 1839, had conveyed to the plaintiff, and which, on said day, remained unpaid for; 3d, the defendant’s oral agreement to support the plaintiff and his wife, during their lives, to keep a horse and cow, and two swine, for the plaintiff, pay physicians’ bills against the plaintiff and his wife, and give back to the plaintiff a lease, for his life, of the premises conveyed ; that said lease had never been executed by the defendant; that in November 1844, the plaintiff made a demand on the defendant to execute a life lease, according to said agreement ; and that the defendant refused so to do, ‘ or to do any thing about it.’
    “It did not appear that the defendant ever refused or neglected to support the plaintiff and his wife, and it did appear that the plaintiff’s wife made her home at the defendant’s house, and the plaintiff also, when he wished so to do; but it did not appear whether they were or were not a charge to the defendant or a benefit to him, by labor or otherwise, when residing with him; and the defendant did not claim any deduction from the damages demanded of him in this suit, on account of his supporting the plaintiff and his wife. He did, however, insist that he had always been, and still was, ready to support the plaintiff and his wife; and there was no proof to the contrary. There was no evidence that the defendant had paid said mortgage of $300.
    “ The defendant contended that the plaintiff could not recover, because the aforesaid agreement was within the statute of frauds; and that if he was entitled to recover at all, the damages should be a sum adequate to the support of the plaintiff and his wife, during their lives. But the judge ruled, that if the jury should find that the alleged agreement was proved, and that the defendant had refused to execute a life lease, when demanded so to do, the plaintiff was entitled to the value of the premises conveyed to the defendant, first making the deduction of the said mortgage of $300, and the amount due from the plaintiff to the defendant for the land sold by him to the defendant, as before stated. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions to the foregoing ruling and instructions.”
    
      Sumner, for the defendant.
    The action is not brought to recover back money where the consideration has failed; but the plaintiff proceeds on an affirmation of the original contract, and for a breach of an oral promise. The statute of frauds (Rev. Sts. c. 74, >§> 1,) applies to this case. Adams v. Tovnsend, 1 Met. 483. Gristvold v. Messinger, 6 Pick. 517. Van Al-stine v. Wimple, 5 Cow. 162. Freeport v. Bartol, 3 Greenl. 340. Boyd v. Stone, 11 Mass. 342.
    A different consideration from that set forth in the plaintiff’s deed was improperly admitted in evidence. Maigley v: Hauer, 7 Johns. 341. Schemerhorn v. Vanderheyden, 1 Johns. 139. Howes v. Bar Jeer, 3 Johns. 509. Emery v. Chase, 5 Greenl, 232.
    In Wilkinson v. Scott, 17 Mass. 249, it was not decided that a different consideration from that mentioned in a deed might be proved; but merely that the acknowledgment of having received the consideration did not estop the grantor from proving that he had not received it. And even this point has been decided differently in Maine, and some other States. Steele v. Adams, 1 Greenl. 1. 3 Stark. Ev. 1001, note (1.)
    If the plaintiff could recover at all, it would be only the value of a life estate in the premises conveyed by him.
    
      Byington, for the plaintiff.
    The defendant has rescinded the oral promise, and the plaintiff is therefore entitled to recover back the consideration money. Kidder v. Hunt, 1 Pick. 328. Thompson v. Gould, 20 Pick. 134. Luey v. Bundy, 9 N. Hamp. 298. Lane v. Shackford, 5 N. Hamp. 130. Burlingame v. Burlingame, 7 Cow. 92. Holbrook v. Armstrong, 1 Fairf. 38. Tyler v. Carlton, 7 Greenl. 175. This last case overruled that of Steele v. Adams, 1 Greenl 1.
    The true rule of damages is the value of what the plaintiff parted with. Bullard v. Briggs, 7 Pick. 533. Belden v. Seymour, 8 Connect. 304.
   Dewet, J.

This action, when closely scrutinized, is in truth an action to recover damages of the defendant for not conveying to the plaintiff, by a life lease, certain real estate. But such a promise, if made by parol only, is not valid in law, and cannot be enforced. Rev. Sts. c. 74, § 1. The plaintiff, aware of this difficulty, endeavors to obviate it by framing his action in the form of assumpsit, to recover the consideration for the land conveyed to the defendant, and for which the life lease was to have been given in part payment. It seems to us that this change of the form of the action does not obviate the difficulty. The defendant holds no money of the plaintiff. He has received land under a conveyance from him, and has, in consideration thereof, made a parol promise to convey an interest in real estate to the plaintiff, which the plaintiff accepted ; although he is presumed to know that such contract cannot be enforced in law. We do not understand that any other breach of this contract is alleged, or that' there has been any failure to support the plaintiff and his wife, and to provide for them as was stipulated. Thus understanding the claim to be restricted to damages for not executing a life lease, the court are of opinion that this promise is within the statute; and that the refusal to perform it will not authorize the plaintiff to recover damages therefor. ' The exceptions to the ruling of the court of common pleas, on this point, are sustained, and the case remanded to that court for a new trial.  