(dissenting):
This action is to recover the price unpaid on the conveyance of thirty-six acres of land by Leonard Trimmer, the father of both parties, to the .defendant. The claim was subsequently assigned to the plaintiff in the action. The appellant presents for consideration several exceptions to the admission and rejection of evidence.
The production of the deed, which, in the usual form, acknowledged the payment of the purchase-price, prima faoie establishes the fact of such payment; and although the referee says, in one part of his opinion, that the burthen of proving payment rests on the defendant, I do not understand him as asserting this as an abstract principle of the law of evidence, but only as applicable to the facts proved in this case, the grantor having, as a witness, denied that any payment on account of the purchase-money was made at the time of the conveyance, but claiming that the defendant was to pay the purchase-price afterward, at such times as the grantor should need the money; and the defendant himself, not controverting this statement, but claiming that he had made full payment afterward from time to time, by applying indebtedness due from the grantor to him on various accounts, so that, in my opinion, the referee is to be understood that, on the facts and concessions in the case, it must be assumed that the acknowledgment of payment contained in the deed was not, in point of fact, true as indicating that any payment was made at the time of the conveyance.
In general the consideration clause of a deed is not within the *185rule excluding parol evidence to contradict a writing. (Adams v. Hull, 2 Denio, 306; Whitbeck v. Whitbeck, 9 Cow., 266; Shephard v. Little, 14 Johns., 210; Witbeck v. Waine, 16 N. Y., 538.)
It seems that a deed had been drawn up by one Borst for the purpose of conveying the land in question, the description contained in which was not clear and satisfactory, and therefore "William E. Trimmer, a son of the defendant, applied to one Losee to draw another deed, with a different and more perfect description of the premises intended by the grantor to be conveyed. Losee, as a witness, was inquired of by the plaintiff’s counsel as to what was stated by William E. Trimmer, when he applied to the witness to have the new deed drawn. To this question the counsel for the defendant objected, on the ground that the evidence called for was immaterial, and that William was not shown to be the agent of the defendant. The referee overruled the objection on the ground assumed by the plaintiff’s counsel, that the plaintiff expected to show that William was acting as the agent of the defendant. The objection, therefore, merely went to the order of proof, and if the plaintiff afterward failed to make proof of the agency, it was incumbent on the defendant, if he intended to rely on this objection, to move to strike out so much of the testimony as related to what the supposed agent had said to Losee. But, moreover, the evidence objected to was wholly immaterial to any issues in the action, and could not have, in any way, affected the conclusions of the referee, or any issue presented by the case.
The witness Losee further stated, in the course of his examination, that when the grantor and his wife executed cund acknowledged the deed, “ I said to the old man (the grantor) you are deeding away about the last piece of property you have got; have you got your pay for it ? ” He said, “ No, but Zachariah had agreeed to pay him when he wanted it.” To this testimony the defendant objected, and on the objection being overruled took an exception.
My brethren differ with me as to the admissibility of this evidence, and think a new trial should be ordered in consequence of the ruling of the referee, whereby the testimony was held admissible.
I think the declaration of the executor made at the time of executing and acknowledging the deed, as to whether the consideration mentioned in ’the deed had been paid, and that an arrangement *186had been made for the payment thereof, in future, was plainly a part of the res gestm and admissible as a declaration accompanying an act, and as tending to counteract the effect of the evidence of payment afforded by the formal acknowledgment of the payment of the consideration contained in the deed which he was then in the act of executing and acknowledging. The same witness was subsequently asked, “ Did you at the time measure off the land described in the Borst deed drawn by you ? ” This the plaintiff’s counsel objected to as immaterial. The testimony of the witness upon this subject could have had no bearing upon any issue in the case. There was no controversy about the quantity of land conveyed in the deed which was finally executed, and the testimony was wholly irrelevant. The testimony of the defendant as to whether he had received any thing from Eliphalet’s estate, by the hands of the grantor, was simply explanatory of testimony which had been given by other witnesses, as to the distribution which had been made of the estate of a deceased brother, and was wholly immaterial to any issue in the action. The questions of fact decided by the referee were as to the amount which should be allowed to the defendant as payments toward the purchase-price of the land conveyed, and I think, so far as we are able to see, on the vague and conflicting evidence, the findings of the referee were quite as favorable as could be justified under the answer of the defendant; and on the whole case I think the judgment should be affirmed. But as my brethren differ with me as to the admissibility of the evidence of Losee as to the declarations of the grantor made at the time of the 'execution and acknowledgment of the deed, and are of the opinion that for the admission of that testimony, the judgment should be reversed and a new trial ordered, it must be reversed accordingly.
Judgment reversed and new trial ordered before another referee, costs to abide event.