
    Joseph Kumler, Appellant, vs. Joseph Ferguson, Respondent.
    APPEAL PROM THE DISTRICT COURT OE CARVER COUNTY.
    On an issue as to what was the real consideration agreed to be paid for land, the sum stated in the deed, and acknowledged to have been received, may be contradicted by parol.
    On such an issue, the negotiations between the parties prior to the execution of the deed, are admissible in evidence to show what was the consideration agreed upon. The value of the land at the time of the sale may also be proved.
    Where conflicting testimony has.been given upon an issue of fact, the report of the referee should not be disturbed without the most cogent reasons.
    Points and Autborities for Appellant.
    I. — The finding of the referee that the conveyance of the land by Plaintiff to Defendant, was made in pursuance of the propositions and conversations had at Millville, in Ohio, is entirely unsupported by evidence, and is directly against the evidence, both of Plaintiff, and as shown by Defendant’s letters, A, B, O and E, (folios 29 to 42 inclusive.)
    II. — It appears that the conveyance of the land was made by Plaintiff to Defendant, with a view on the part of Plaintiff of defrauding his creditors, and not with a view of making a final sale thereof at any price; that the sum mentioned in the deed, as the consideration, was inserted without the knowledge or privity of the Defendant, and for the purpose, in the classic language of the Plaintiff in letter B, of showing no “ defraud ” in the matter; and that on the part of the Defendant, the conveyance was taken and accepted for the purpose of securing the sum of $585 and interest, which he had loaned to Plaintiff under the contract referred to in letter D. The Plaintiff and Defendant are not in pari delicto. The Plaintiff attempts, by the conveyance, to defeat the claims of creditors at all events. The Defendant accepts the conveyance to secure a Iona fide indebtedness.
    Points and Authorities of Respondent.
    I. — The consideration of a deed is always open to explanation ; not for the purpose of showing that there was not any consideration, but to show what the actual consideration was. The receipt contained in a deed, like any other simple receipt, is only prima facie evidence. Por the purpose of showing what the actual consideration of the deed from Plaintiff to Defendant in this case was, evidence of the conversation between them, touching the contract of sale, was competent and admissible.
    II. — The parties disagreed as to the contract of sale, and the amount of the consideration for the deed from Plaintiff to Defendant. The value of the land at the time was a circumstance of much significance, in giving preponderance to the testimony of the Plaintiff, and for that purpose (and it was offered only for that purpose) it was competent and admissible.
    III. — It is quite clear that the proposition of the Plaintiff to the Defendant to sell the land for $1600 ripened into a contract which was in fact consummated by the deed and notes, whatever may have been the motives inducing it. The circumstances disclosed by the testimony all tend to that conclusion.
    The referee having found, under such state of testimony and as matter of fact, that the consideration of the deed was $1600, and that the notes were given for the balance thereof after deducting the $600 which Plaintiff owed Defendant, this Court will not disturb that finding, but will treat it as they would tbe verdict of a jury finding tlie same result upon tbe same testimony.
    IY. — Tbe Defendant does not in bis answer claim that tbe contract, in execution of which tbe deed and notes were given, was corrupt or contra "bonos mores, but admits an honest indebtedness to Plaintiff of several hundred dollars for tbe land. Tbe only issue that he makes is upon tbe amount. That is purely a question of fact, upon which tbe parties have given conflicting testimony, and the referee has passed upon it as such. His finding is conclusive, and tbe Defendant cannot now be permitted to impeach that finding by alleging that tbe contract was designed as a fraud upon tbe Plaintiff’s other creditors. He cannot now avoid bis liability for any such cause, and bis attempt to do so, and at tbe same time to escape tbe opprobrium which bis effort fixes upon himself, does not commend him to favor.
    L. M. BeowN, Counsel for Appellant.
    A. C. Chatfield, Counsel for Respondent.
   By the Court

ElaNdeau, J.

Tbe only issue made by the pleadings in this case is upon tbe amount tbe Defendant Kumler agreed to pay for tbe land purchased by him from Ferguson; tbe latter claiming that the consideration was $1600, and tbe former that it was $985. The Defendant, under bis answer, cannot attack tbe sale of tbe land, as being a sham made to keep it from tbe creditors of Plaintiff, because be admits an indebtedness of $415 on tbe notes given for the consideration money.

Tbe fact that tbe deed expressed a consideration of $1600, and acknowledged tbe receipt of that sum, is not conclusive. Tbe real consideration may, in cases like tbe present, be shown, notwithstanding tbe receipt. Tbe conversation between Plaintiff and Defendant concerning tbe sale of tbe land before giving tbe deed, offered in tbe early part of the Plaintiff’s testimony, was clearly admissible under tbe issue; it gave the Plaintiff’s version of tbe negotiation which terminated in tbe sale of tlie land, and wbat be claimed was the real consideration.

On an issue of this hind the actual value of the land at the time of the sale, bears very materially. If it was worth as much or-more than $1600, it would go to increase the probability of the Plaintiff’s theory. If on the other hand it should turn out not to have been worth over $1000, it would very much strengthen the Defendant’s case. The referee was entitled to light of this fact.

“Whether Noah Sinks claimed that the Plaintiff was indebted to him or not, at the time of the sale, was wholly immaterial, because there was no issue that authorized testimony to invalidate the deed. And it is not at all clear, that under an issue of fraud directly made upon the deed, the mere claim that the grantor was indebted, would be admissible.

The evidence was quite conflicting as to what the real consideration was understood to be between the parties, and in such cases, as we have frequently held, an appellate Court should not interfere. From a careful examination of ail the testimony, any mind might hesitate as to which view to adopt, that of the Plaintiff or the Defendant. The referee may have been influenced by some circumstances that cannot be made to appear on paper, and it is for just that reason we refrain from meddling with his findings. Our views upon this question are given in the case of Martin vs. Brown, 4 Minn. R., 282, by the Chief Justice, and in several other cases which preceded it.

The order must be affirmed,  