Kidd v. Carson

Stewart, J., delivered the following dissenting opinion: The agreement of Carson and Eowland to credit any profits which might be made by them, from a sale of the land conveyed to them by Milton T. Kidd, by the deed of the 21st of March, 1853, having been clearly proved, I think the credit ought to be allowed and differ with a majority of the Court, that its allowance is forbidden by the Statute of Frauds. That statute was intended to prevent and not to be the means of sanctioning fraud. The acknowledgment of the receipt of the purchase money in the deed, is but prima facie evidence of its payment, and does not preclude the'grantor from showing by parol that the consideration has not been paid; or that some additional consideration, agreed upon, had not been paid. Evidence of other consideration, than that described in the deed, can be given, if not inconsistent with the character of that in the deed.

Where the deed is made on a moneyed consideration, it cannot be shewn that money did not constitute the consideration, because that would operate to change the character of the deed, but evidence may be admitted to show the same kind of consideration, although differing as to the amount. In this case the parol testimony does not affect the character of the deed from Kidd to Eowland and Carson, but shows an additional or suppletory consideration, which if established, as it manifestly was in this instance, imposes upon the gran ⁴⁴ tees the obligation to pay the same. This does not render the deed other than a deed of bargain and sale, and I do not perceive that its introduction is obnoxious to the provisions of the Statute of Frauds. See Wolfe vs. Hauver, 1 Gill, 90 ; Cole vs. Albers and Runge, 1 Gill, 423 ; Cunningham vs. Dixon, 23 Md., 231 ; 1 Greenleaf on Evidence, sea. 304; Washburn on Real Property, 326, 327.

Brent, J., delivered the opinion of the Court. The bill in this case was filed to enforce a lien upon certain lands of the appellants for a balance of purchase money due ⁴² thereon. The lien is admitted, but it is insisted by the appellants, that the amount claimed to be due should be credited by profits realized by John Carson and J. Harvey Eowland from the sale of certain other lands, which they had bought from Milton Y. Kidd,