
    Ilai Griswold versus Warren Messenger.
    Where land was conveyed by a deed stating the consideration to be a sum of money received by the grantor, and the grantor afterwards brought an action to recover the value of the land, paroi evidence that the actual consideration was a promise to convey to a third person, and that the grantee had refused to make such conveyance, was held to be inadmissible»
    This was assumpsit to recover the value of certain land described in a deed from the plaintiff to the defendant, dated June 18, 1824, purporting to be made for 1100 dollars, which, as was said in the deed, had been paid to the plaintiff, and the receipt whereof he acknowledged, as in the common form of a deed.
    The first count alleged that the defendant, being indebted to the plaintiff in the sum of 1100 dollars for land sold and conveyed, in consideration thereof promised to pay that sum ; the second was for money had and received ; the third was a quantum valebat.
    
    The plaintiff proved, that having had the -proceeds of real estate which belonged to his wife applied to his own use, he agreed with her to convey the land desi bed in the deed above mentioned to a third person, for the purpose of conveying it to her ; that he conveyed the land to the defendant, upon his promising to convey the same to Mrs. Griswold ; that the defendant paid no consideration for the conveyance, but having got the deed recorded, claimed to hold the land for his own use, and refused to convey it to Mrs. Griswold according to his agieement.
    The defendant objected to the admission of this paroi evidence ; but for the purpose of ascertaining the facts it was admitted, and a verdict was found for the plaintiff. If this evidence ought to have been excluded, the plaintiff was to become nonsuit.
    
      J. Mills for the defendant.
    Our first objection to the paroi evidence is, that it contradicts the deed. The consideration stated in the deed is 1100 dollars ; but the evidence proves that the agreement to convey was the actual consideration. 3 Stark. Ev. 1004 ; Schermerhorn v. Vanderheyden, 1 Johns. R. 139; Howes v. Barker, 3 Johns. R. 506; Maigley v. Hauer, 7 Johns. R. 341.
    The first and third counts set out a sale, but the proof is that there was no sale ; which is a variance. 1 Chit. PI. 299. The second count is not supported, as no money was received by the defendant.
    The contract proved is within the statute of frauds. St. 1783, c. 37, § 2, 3; Flint v. Sheldon, 13 Mass. R. 448; Boyd v. Stone, 11 Mass. R. 342.
    
      Dewey and Blair, for the plaintiff,
    contended that although the contract was originally within the statute of frauds, yet as a substantial part of it had been performed, the defendant was not at liberty to treat the whole transaction as a nullity. , The statute does not declare contracts not in writing for the sale of land, and all that may be done in pursuance of them, to be void ; it only prohibits actions being brought to enforce them. The action before the Court is not to compel a conveyance, but to recover the value of the land. It proceeds upon the ground, that the special contract has been rescinded. If such is the fact, it is unnecessary to set out the original contract. Gillet v. Maynard, 5 Johns. R. 85; Towers v. Barrett, I T. R. 136; Kidder v. Hunt, 1 Pick 328; Badger v Phinney, 15 Mass. R. 359; Burlingame v. Burlingame, 7 Cowen, 92; Ricker v. Kelly, 1 Greenl. 117.
    The count for money had and received may be sustained, the land being “ money’s worth.” Floyd v. Day, 3 Mass. R 403; Longchamp v. Kenny, 1 Doug. 137; Randall v. Rich, 11 Mass. R. 494; Arms v. Ashley, 4 Pick. 71; Sheldon v. Welles, ibid. 60. Or if not, the counts for land sold are good. 2 Chit. Pl. 7; Shephard v. Little, 14 Johns. R. 212 
      Velie v. Myers, ibid. 165; Bowen v. Bell, 20 Johns. R. 340; Goodwin v. Gilbert, 9 Mass. R. 514. It is settled that paroi evidence is admissible to show that the consideration was not paid, notwithstanding the acknowledgment in the deed. Wilkinson v. Scott, 17 Mass. R. 249.
    
      
      Sept 17th.
    
   The case was continued nisi for advisement, and in the vacation the Court ordered a nonsuit, on the ground that the paroi evidence was inadmissible. 
      
       See Steele v. Adams, 1 Greenl. 3; Dixon v. Swiggett, 1 Harr. & Johns. 252; Brocket v. Foscue, Ruffin, 64; Eveleth v. Crouch, 15 Mass. R. (Rand’s ed.) 309, note a; Powell v. Monson & Brimfield Manuf. Co. 3 Mason, 347.
      But see Bowen v. Bell, 20 Johns R. 338; Whitbeck v. Whitbeck,9 Cowen, 266; Sinclair v. Jackson, 8 Cowen, 543; Hamilton v. M'Guire, 3 Serg. & Rawle, 355; Weigley v. Weir, 7 Serg. & Rawle, 309; Watson v. Blaine, 12 Serg. & Rawle, 131; Belden v. Seymour, 8 Connect. R. 304; Clark v. Brown, 1 Root, 77; Hannah v. Wadsworth, 1 Root, 458; Cone v. Tracy, 1 Root, 479; 1 Swift’s Dig. 121, 574; Morse v. Shattuck, 4 N. Hampsh. R. 229; Schillinger v M‘Cann, 6 Greenl. 364; Emmery v. Chase, 5 Greenl. 232; O‘Neal v. Lodge 3 Harr. & M'Hen. 433.
     