#### Graves v. Carter.

From Caswell.

Parol evidence shall not be received to contradict an averment, in a deed, of the payment of the purchase money.

Assumpsit to recover the balance of the purchase money of a tract of land, which it was alleged Plaintiff had sold to Defendant. The pleas were the general issue, and the act of 1819, entitled “ an act to make void pa-rol contracts, for the sale of land and slaves.” Upon the. trial below, the Plaintiff proved that he and the Defendant had entered into a parol agreement for the sale and purchase of a tract of land, and that it was agreed between them, that the land should be surveyed, that a deed should be then made, and the purchase-money paid by delivering to the Plaintiff a bond,, which Defendant *577I»M agar.r.íf Thomas Haralson» íbr $ 600, and interest thereon, and for the balance a nota negotiable and paya-fck at ihe Milton Branch of the 'Mew-bens Bank. After the land was surveyed, the Plaintiff made and executed e deed, and delivered it, with a p!at of the survey, to Badforti Brown, who was, as he aliened, agent of the Neíb .¡riant, to receive the deed. The deed remained in EíowVs possession for ten or twelve days, when he went, to I ho Beieudsnt’a house, and informed her that the Plasmidf whs anxious to cióse the business, and asked her for tho bond of Haralson $ sise gave it to him, and he afterwards delivered it to tho Plaintiff. Brown, at this víkkí» did not give her Plaintiff’s deed, but thought it probable that he mentioned to her the fact of his having it. Some days afterwards, the Defendant informed Brown that she would not comply with tiie contract, or receive tiie deed, and it remained in Brown’s possession anti! tiie trial of the cause.

On the trial Plaintiff gave Use deed in evidence, arid it contained a recital that for and in consideration of the sain of B 2,538, to him in band paid by tiie Defendant, ie the receipt whereof is hereby acknowledged,” he, the Plaintiff, bargained and Hold to tire Defendant the tract of land, fee. For the Defendant it was contended, 1st, that Bedford Brawn could not be constituted an agent, to accept the deed, except by some writing signed by the Defendant. 2d. That if his acceptance of tho deed, did bind the Defendant, no pare! evidence ought to be received to contradict the averment of tiie deed, that the purchase money was paid to the Defendant. This objection was overruled by tiie Court, and parol evidence was admitted to shew that the balance of the purchase money bad not been paid, and the Court instructed the Jury, that if the evidence satisfied them that the Defendant bad appointed Bedford Brown, her agent, to accept tho died, though the said appointment were not in 'writing, she was hound by his acceptance, A verdict *578was returned for Plaintiff, and the case stood before this Court, on a ruie to shew cause, wherefore a new trial should not be granted.

Mwrphey, in support of the rule.' — 1st. The acceptance of the deed by Brown, did not bind the Defendant. An authority to accept a deed, by which an estate of freehold is to pass, must be delegated by deed, except in the single instance where the authority is exercised in the presence of the grantee. “ Neither the feoffor being absent can make livery, nor the feoffee being absent can take livery, but by warrant of attorney, by deed, and not by parol, because it concerneth matter of freehold.” —-(Co. Lit. 48.) And in note 313, to Co. Lit. sec. 48, <e adjudged that feoffee being absent, cannot take livery, nor feoffee being absent, make livery, by attorney, by parol; but a lease for years may be delivered by attorney by parol.” And in 2 Roll. Mridg. PI. 34, “ an authority to take or receive livery of seisin, must be by deed.”

2d. Parol evidence ought not to have been received to contradict the averment of the deed, that the purchase money was paid. This point has been solemnly adjudicated in this Court, in the case of Brocket v. Foscue, (1 Hawks R. 64,) and the point was settled in the Court of Common Pleas in England, in the case of Rountree v. Jacob — (2 Taunton.)

Ruffin, contra.

The Court below properly left it to the Jury to say whether Brown was an agent; the ver-diet affirms that he was. Under the English statute of frauds, an agent may be constituted by parol, except for the purpose of conveying lands. Rucker v. Commeyer (1 Esp. Cases, 106.) Coles v. Trecothick — (9 Ves. 250.) Paley on agency, 136 — 1 Scho. & Lef. 22. To me, it seems that this action does not arise upon the contract itself $ the verdict establishes Brown’s agency •, th@ *579i’»*T«'riinent was executed by the delivery of the deed to hi in ; the action is founded on a collateral ¡natter, arising 7 juter ihft execution of the contract, on a mere personal tiling, vi:r,. the consideration el the contract. — (_1 Comfit on Gont. (19, 70, 71.)

As io the recital in the deed, of the paymerit of the purchase money ; after the solemn decision of this Court in Use case of Brocket v. toseue, it may be deemed pre-so ¡option in me to attempt to controvert it by authority $ J may be. pardoned, however, for casing that it was certainly not expected by the profession, and has not given general mtíisíaction 5 and 1 would respectfully submit one view of the subject, wldela has ooenrml to my mind sine? that, decision was raa.de. £f the recital in the deed operates as a bar, it most be on the ground that it is a release. Now a release, it will be remembered, is as eiiicacioiis and operative in equity as it is at law; yet the derisions are numerous, that, a vendor, notwithstanding lie has conveyed lands, and executed and delivered deeds, has 5 eí a specific lieu for any balance of purchase money which may be due, even though the payment thereof be secured by bond. Oh what principle then, shall a vendee ai law, be protected ? In law, the case is stronger than in equity, for inequity the lien extends to the vendee and all who lake with notice.; at law, to the vendee only. McCreth v. Simons — (15 Ves. Jim. S.,0.) — Gulden on Vendors, 086. if it bo said that, in equity, vendee is a trustee j be it so, a release bars a trust.

Murphey, in reply,

cited an additional authority on the subject of delegating authority to agent by parol, (Salk. 96,) and was proceeding to discuss the admissibility of parol evidence, to contradict the averment in the deed, when he was stopped by the Court.

*580Taylor, Chief-Justice,

delivered the opinion of the Court:

The case of Bracket v. Foscue, wherein this poin- occurred, was decided in conformity with the clear mil*' of law, that parol evidence shall not be received to contradict a deed ; and hovover reluctant the Court may he to apply a rule which produces injustice in the particular case, yet the community is benefited upon the whole, by an adherence to the law. In addition to the authorities cited in that case, may be added Rountree v. Jacob, 2 Taunt. 141 where it was held, that in an action for o«-' ncy had and received, if the Defendant shews a deed of assignment of the money to himself, and a receipt lor the consideration money endorsed,' it is a good discharge, though there is strong evidence of suspicion that the consideration is falsely recited, and that the money never was paid. Though in a Court of Equity, the ven-dee, who pays no part of the purchase money, will be considered as a trustee; yet, in law, the receipt cannot be got over, unless it is merely fraudulent Henderson v. Wild, 2 Campb. 561. There must be a new trial.