
    John N. Callaway v. Kendal B. Hearn.
    The usual acknowledgment of the receipt or payment of the consideration or purchase-money contained in the body of a deed, is prima facie, but * not conclusive evidence of the payment of it, and paroi evidence is admissible in this State to show that it has not been paid.
    If, however, the grantor in the deed, after the date, execution and delivery of it, gives the grantee his judgment note for a sum of money, it will create a presumption that the consideration-money for the deed was paid at or prior to the date of the note, as it would imply a settlement between the parties at that time, and that all claims and demands between them of inferior grade and dignity were included in it, and were extinguished by the security of a higher nature. It raises, however, at best, but a presumption, and as all presumptions of this character may be rebutted, it is not necessarily conclusive.
    An action of debt for such a claim will be barred in three years from the delivery of the deed, tbe time when the cause of action accrues, unless some subsequent acknowledgment of it, as a subsisting demand by the defendant, is proved to the satisfaction of the jury.
    This was an action of debt to recover the sum of $400, the consideration-money mentioned in a deed of bargain and sale for a tract of land, sold and conveyed by the plaintiff, John H. Callaway, to Kendal B. Hearn, the defendant. The pleas were nil debet, payment, set off, accord and satisfaction, act of limitations, and further, that ’ after the sale of the said land and delivery of the deed, the plaintiff made and delivered to the defendant his judgment note for $212, with lawful interest from the date of it, and that the same still remained wholly unpaid and unsatisfied.
    The deed, dated, executed and acknowledged on the 25th of September, 1852, for the land, was offered in evidence, the consideration of which was $400, and contained in the body of it the usual acknowledgment of the payment of the consideration-money, but no receipt for it from the plaintiff to the defendant indorsed on the back of it. Ho witness saw the deed delivered, but it was proved on the part of the plaintiff that the defendant had said, subsequent to the delivery of it, that he had not paid the plaintiff for ‘the land, and that he never would, until he got his brother, William Callaway’s,.right to it. Also, that his sole and exclusive title to the premises sold was good and unquestionable, and that his brother, William Callaway, had no share or interest whatever in ‘them. Bor the defendant it was proved that the plaintiff had stated, some six or seven years.previous to the trial, that he owed the defendant four or five hundred dollars; and that in reply to an inquiry why he had sold the land to the defendant, he said he owed him between four and five hundred dollars, he expected. It was also proved that after the sale of the land and the delivery of the deed and the possession of the premises to the defendant, the plaintiff hád a settlement with him,of all debts and accounts between them, tad of their mutual demands against each other, when the $400, the consideration-money to be paid for the land, was brought forward by the plaintiff, and when, upon a full settlement, including this demand, he fell in debt to the defendant in the sum of $212, for which he in a few days afterwards, on the 12th of September, 1854, gave his judgment note to the defendant, and which was duly proved and given in evidence ; and that afterwards, on the 24th of March, 1855, he gave the defendant a receipt for $1.07 in full of all accounts against him.
    Upon this evidence it was insisted for the defendant, 1. That the usual acknowledgment or receipt of the payment of the consideration-money incorporated in the body of the deed, being under seal, estopped the plaintiff from denying that the purchase-money for the land had been paid, and that paroi proof was not admissible for that purpose. Dixon, for the use of Berry, v. Swiggett, 1 Harr. & Johns, 252; Steel v. Adams, 1 Greenl. Rep. 1; Skillenger v. McCam, 6 Greenl. Rep. 364; Emory v. Chase, 5 Greenl. Rep. 232; Davenport v. Mason, 15 Mass. 85, 6 T. R. 62, 9 Reps. 52; Spike v. United States, 9 Cranch, 28, 1 Campb. 392, 2 Ibid. 561; Outten and wife v. Knowles, 4 Harr. 533; Inskeip v. Shields, 4 Harr. 345, 2 Taunt. 141. 2. That the execution "tad delivery of the judgment note for $212, by the plaintiff to the defendant, after the execution of the deed and delivery of the possession of the land by the former to the latter, extinguished any indebtedness on the part of the defendant to the plaintiff, if any before that had existed on account of the purchase of the land, or for any cause whatever. Because if a party takes a higher security, having at the same time a lower security for a debt, the law presumes the lower is included in the security of the higher nature, and that it was extinguished by it; and this principle of law proceeded on the presumption of a settlement, as had been proved in this case, between the parties at the time the higher security was taken. 1 Ch. Pl. 100 ; Cro. Car. 415; 2 Bac. Abr. Debt. (G.) p. 290; 3 Bac. Abr. Exting. (D.) p. 106; 2 Johns, 213; 4 Pick. 442; 10 Pick. 522. 3. That the claim of the plaintiff was'barred by the act of limitations, as the suit was not commenced until the 9th day of October, 1855, although the deed was executed, acknowledged and delivered on the 25th of September, 1852, at which time the cause of action accrued.
   The Court,

Gilpin, Ch. J.,

charged the jury: The plaintiff by his deed, bearing date the 25th of September, 1852, conveyed to the defendant certain lands for the consideration of $400, which sum it is alleged has never been paid, and for the recovery of which this suit has been instituted.

In the body of the deed is contained the usual acknowledgment of the receipt or'payment of the consideration-money. And it is insisted on the part of the defendant that the plaintiff, according to the rules of law, is estopped from denying the payment of the purchase-money. Such was.formerly the doctrine held in England, and the same doctrine is held in some of the States of this country. But such has never, that we are aware of, been recognized as the law of this State.

A receipt or acknowledgment, contained in the body of the deed, is undoubtedly prima fade evidence of payment of the consideration-money, but it is not conclusive. The fact of actual payment may be inquired into, and may be controverted, and it is competent for the plaintiff to show, by paroi evidence, the non-payment of the consideration-money mentioned in the deed. The acknowledgment, however, is considered sufficient evidence of the payment, until rebutted by showing the contrary.

The first question therefore to be considered and decided by you is, whether it satisfactorily appears, from the evidence before you, that the consideration-money was not paid at the time of the execution and delivery of the deed. If it was so paid, then there is an end of this case. But if it was not so paid, then it becomes neces-. sary for you to inquire and determine whether it has been paid since the delivery of the deed, in the month of September, 1852, or whether the plaintiff was at that time, or at any time since the delivery of the deed, and prior to the bringing of this suit, indebted to the defendant, to an amount equal to the consideration-money of the deed of $400, with its interest.

These questions you will decide in view of all the evidence which has been submitted for your consideration.

It has been shown by the evidence that on the 12th of September, 1854, the plaintiff gave to the defendant a judgment note for $212, and that on the 24th of March, 1855, he gave the defendant a receipt for $1.07, in full of all accounts. And it is insisted by the defendant that the giving of the judgment note creates a legal presumption. that the consideration for the land has been paid at or prior to its date. This is certainly true as a general proposition, and if this fact stood alone, without other circumstances, it would be entitled to great weight; as it would imply a settlement between the parties at that time, and that all claims and demands between them "of inferior grade and dignity were included in it, and were extinguished by the security of a higher nature. It raises, however, at best, but a presumption, and as all presumptions of this character may be rebutted, it is not necessarily conclusive in this case. We say it is not necessarily conclusive, for this will very properly depend upon the view which the jury may take of other portions of the evidence, especially that which has reference to the consideration for which the judgment note was given. It seems that the plaintiff had previously become indebted to the defendant in various sums, namely: a note for $159.85, a bill for $25, and another for $8.75, which sums, according to the evidence, were included in the judgment note of the 12th of September, 1854, for $212.

It was contended on behalf of the plaintiff, that the judgment note was given for securing the sums just mentioned, together with, perhaps, some other small demands, without any reference whatever to the consideration-money mentioned in the deed. If this be so,—that is, if the sum of $400, with its interest, remains unpaid, then the plaintiff will be entitled to recover whatever balance may be found to be due, after deducting the sum of $212, with the interest which may have accrued on that sum. But all these facts must be considered in connection with the testimony of William S. Hearn, and the receipt of the 24th of March, 1855, for $1.07. This witness stated in substance, that a few days before the judgment note was given, the parties made “a full settlementthat they “cast.up their accounts” on asíate; that the plaintiff “brought forward his- claim of $400,” being the amount of consideration-money mentioned in the deed, and that after deducting this sum from the claims of the defendant, there remained a balance of $212 due to the latter; and that for this sum the judgment note of the 12th of September, 1854, was given. He remembered some of the items constituting the defendant’s claim, such as the note for $159.85, and the bill for $25, and $8.75, but could not recollect other items which he said were taken into account in the settlement. His opportunities of knowing what occurred and the accuracy of his recollection and statement, are matters proper for your consideration.

But, gentlemen, if you believe the testimony of the witness William S. Hearn (and his credit for veracity has not been attempted to be impeached), there was a full settlement between the parties, in which the sum of $400, now in controversy, was taken into consideration, and in which a balance of $212 was found due to the defendant. If this be true, the plaintiff is not entitled to recover. On the other hand, if you should be of opinion from the evidence that the sum of $400 was not taken into consideration, and that the defendant is actually and justly indebted to the plaintiff, then you should find for the plaintiff for such balance as may remain after deducting the sum of $212, with its interest, unless you shall be satisfied that the receipt for $1.07 was a final settlement. The weight to which this receipt is entitled, is a matter for your decision.

Moore & W. Saulsbury, for the plaintiff.

C. S. Layton and E. D. Cullen, for the defendant.

To this demand of the plaintiff the defendant has also pleaded the statute of limitations, as to which we have to say to you, that if the suit in this case was not commenced within three years after the accruing of the cause of action, which was at the time of the execution and delivery of the deed to the defendant, the plaintiff cannot recover, unless some subsequent acknowledgment of the debt, or of some part of it, by the defendant, as a subsisting demand against him at the time, made within the three years next preceding the institution of the suit, had been proved to the satisfaction of the jury; in which event, such an acknowledgment made within that time would take the case out of the operation of the statute, and entitle the plaintiff to recover to the extent of such admission. But if no such acknowledgment had been proved, then so far as the plea of the statute of limitations was concerned, it was an absolute bar to the action, if the suit was not commenced within three years after the cause of action accrued ; and if such was the case, then your verdict should be for the defendant.

Verdict for plaintiff for $293.75.  