On the trial plaintiff gave the deed in evidence, and it contained a recital that for and in consideration of the sum of $2,538, to him in hand paid by the defendant, "the receipt whereof is hereby acknowledged," he, the plaintiff, bargained and sold to the defendant the tract of land, etc. For the defendant it was contended: (1) That Bedford Brown could not be constituted an agent to accept the deed except by some writing signed by the defendant. (2) That if his acceptance of the deed did bind the defendant no parol evidence ought to be received to contradict the averment of the deed that the purchase money was paid to the defendant. This objection was overruled by the court, and parol evidence was admitted to show that the balance of the purchase money had not been paid, and the court instructed the jury that if the evidence satisfied them that the defendant had appointed Bedford Brown her agent to accept the deed, though the said appointment were not in writing, she was bound by his acceptance. A verdict was returned for plaintiff, and the case stood before this Court on a rule to show cause wherefore a new trial should not be granted. Brocket v. Foscue, 8 N.C. 64, wherein this (580) point occurred, was decided in conformity with the clear rule of law that parol evidence shall not be received to contradict a deed; and however reluctant the court may be to apply a rule which produces *Page 324 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 money had and received, if the defendant shows a deed of assignment of the money to himself, and a receipt for the consideration money indorsed, 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 vendee, 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
PER CURIAM. New trial.
Cited: S. c., 12 N.C. 75; Rice v. Carter, 33 N.C. 300; Shaw v.Williams, 100 N.C. 280.