
    Bowen against Bell.
    Where the Steed lfto release his right to a lot ofland to the defendtain sum, fendantagreed to pay, and accordingly delivered a”a deed to the defendant, m which he ac-the°'recefpt of the considerabut which was paid, and^thé posse¿tont0of the land -.Held, tiifmightmainofm assumpsit against the defendant to recover the amount of the consideration money agreed to be paid by him ; it not being a contract within the statute of frauds.
    Parol evidence is admissible to show that the consideration expressed in a deed to have been received by the grantor, has not been paid by the grantee.
    A Sheriff’s deed ris not admissible in evidence, without showing the judgment and execution under which he sold the land.
    THIS was an action of assumpsit, tried before Mr. Justice Woodworth, at the Washington Circuit, in June, 1821. The declaration contained a general count for land sold and conveyed to the defendant, and the money counts. It was proved, that the plaintiff owned four sixths of a certain farm, and the defendant two sixths, as tenants in common. It was agreed, that the land should be equally divided between them, ánd that the defendant should pay the plaintiff for one sixth part, ^ sul‘vey of the land was accordingly made, and mutual releases and quit-claim deeds were executed by the parties to each other, for their respective moieties, in severalty. The deed from the plaintiff to the defendant for the north half 0f (fog farm, was dated December 16, 1818, and stated, that it was in consideration of the sum of one thousand dollars paid by the defendant, the receipt whereof was thereby acknowledged, fee. After the execution of the"deeds, each party took possession of one half of the farm. It was admitted, that the defendant had not paid any consideration for the deed to him. A witness testified that, at the time of the division, it were agreed, that the defendant should pay to the plaintiff two hundred and fifty dollars for the one sixth which had been conveyed to him by Abel Austin. The defendant’s counsel objected to the admission of parol evidence, on the ground that the agreement was within the statute of frauds and being a special agreement, it could not be given in evidence under the general counts. But the Judge overruled the objection, and admitted the evidence. It was proved, that the farm belonged to Ellis Austin, wh© died before 1816, leaving six heirs, from whom the plaintiff had purchased four shares. That at the time the releases were executed between the parties, the defendant claimed the whole farm by virtue of a Sheriff’s deed under a judgment and execution against Austin's heirs. "That the parties, after much dispute, agreed to the division, and to execute releases as above stated. The value of the whole farm was estimated at two thousand dollar!. The defendant’s counsel moved for a nonsuit; but the Judge refused to grant the motion, and decided, that notwithstanding the acknowledgment in the deed of the receipt of the consideration money by the plaintiff, the plaintiff might recover on the parol agreement, which was not extinguished by the deed. The defendant’s counsel then offered in evidence a deed from the Sheriff of Washington county, dated April 6, 1818, reciting that by virtue of a fi. fa. issued out of the Supreme Court, tested November 1, 1817, at the suit of Lyman Hall and Samuel Ely, against Joseph Austin, Abel Austin, and others, on a judgment against them, fee. for eighty-five dollars and seventy-six cents, he had taken and sold a certain lot of land in Hebron, formerly owned by Ellis Austin, to George. Sell, (the defendant,) at public sale, for seventy-seven dollars and fifty-seven cents, he being the highest bidder, &c. But the deed was rejected by the Judge, on the ground, that no record of the judgment and execution was produced. The plaintiff proved, that the one sixth of the farm was worth two hundred and fifty dollars; and one of the witnesses stated, that the plaintiff bought Abel Austin's share subsequent to the judgment against the heirs of Ellis Austin.
    The Judge charged the jury, that the liability of the defendant depended on the question of fact, whether the plaintiff did or did not execute the quit-claim deed to the defendant^ an¿ part with the possession of the land, on the defendant’s agreeing to pay him for the share which he had purchased of Abel Austin, being one sixth part of the whole farm. The jury found a verdict for the plaintiff, for two hundred and twenty-five dollars and twenty-eight cents.
    A motion was made to set aside the verdict, and for a new trial. The cause was submitted to the Court without argument.
   Woodworth, J«

delivered the opinion of the Court, This is not a case within the statute of frauds. The contract was perfected by giving the deed. The claim now is, to pay the value3 the consideration to support the promise is the release of tfie plaintiff’s title. It is immaterial what Is the origin of the debt, provided it is founded qn a lawful consideration. This action is not on a contract for the sale of lands, or any interest in lands. The law raises the promise to pay, and, in such case, it is not within the statute of frauds, although it be raisecl from an agreement concerning an interest in lands. In Goodwin v. Gilbert, (9 Mass. Rep. 514.) it is laid down as a general rule, that where land is conveyed by a Seed poll, and the grantee enters under the deed, certain duties being reserved to be performed, as no action lies against the grantee on the deed, the grantor may maintain assumpsit for the non-performance of the duties reserved. The case of Pomeroy v. Winship, (12 Mass. Rep. 514.) is very much in point. It was there decided, that if & parol contract be made for the sale of lands, and a deed be afterwards given pursuant to the contract, the bargain is then consummated, and the contract is liable to no objection arising from the statute of frauds. Actions have frequently been prosecuted in our own Courts to recover the consideration for lands sold and conveyed. In Shepherd v. Little, (14 Johns. Rep. 210.) it was held, that assumpsit would lie to recover the consideration money of land sold. There is, then, no obstacle in the way of a recovery on this ground 5 neither is there any force in the objection, that here was a special agreement proved, and that the count is general; for the evidence introduced went to establish a promise to pay for Abel AustinSs right, which was the one sixth ; it was not a conditional, or special promise. The proof supported the declaration. The case last cited, also shows, that,although the consideration expressed in the deed is acknowledged to have been paid, parol evidence is, notwithstanding, admissible, to show that it had not been paid. When one species of consideration is expressed, another, or different one, cannot be proved, neither can parol proof be admitted substantially to vary or contradict a written contract", but these principles are inapplicable to a case where the payment, or amount of the consideration, becomes a material inquiry.

The Sheriff’s deed to the defendant was properly rejected, as no legal proof of a judgment and execution was offered. The evidence of Olmsted, that the plaintiff bought the share of Austin subsequent to the judgment against the heirs, does not appear to have been urged or relied on at the trial: if it had been, it was not competent proof of a judgment; but, admitting it to have been legal proof, non constat, that it was the judgment under which the Sheriff sold; besides, there was no proof of an execution. If it were admitted, that the defendant purchased under a judgment obtained previous to the plaintiff’s conveyance from Austin, it would not defeat the right to recover ; for the defendant may have had, notwithstanding, substantial reasons to accept a title from the plaintiff, and immediately acquire the possession under it. He chose to purchase the plaintiff’s right, and if he agreed to pay for it, which the jury have found, there was a good consideration for the promise, and, consequently, the title under the judgment was irrelevant, and immaterial.

The motion for a new trial must be denied.

New trial denied.  