I concur with the Court in the opinion that the record in the name of John M. Chenevard against Thompson and Dimock, ought to have been admitted in evidence. But the testimony offered to enlarge the consideration in the defendant’s deed, I consider as inadmissible.
The plaintiff alleges in his declaration, that by their deed, the defendants granted and conveyed to him, in consideration of 1800 dollars, a tract of land, and covenanted that they had good right to bargain and sell the same. The deed was expressed to be for the consideration of 1800 dollars.
The plaintiff, at the trial, insisted,, that the consideration ac*314tually paid was 2800 dollars, and that the insertion of 1800 dollars in the deed, was through mistake. To prove this, he offered an account, presented, by the defendants, to the court of probate, in which they charged the sale of the land at 2800 dollars. The offered testimony was rejected, by the court.
It is not susceptible of dispute, that the evidence could not be received on the foundation of mistake. On this ground, relief is within the jurisdiction, exclusively, of a court of chancery. Redesdale’s Tr. Ch. Pl. 117. 1 Madd. 40. 1 Johns. Chan. Rep. 138. 594. 609. Gillespie & ux. v. Moon, 2 Johns. Chan. Rep. 585, Lyman v. The United Insurance Company, 2 Johns. Chan. Rep. 630. Washburn v. Merrills, 1 Day 139. McCall v. McCall, 3 Day 402. Noble v. Comstock, 3 Conn. Rep. 295. 299. In Maigley v. Hauer, 7 Johns. Rep. 341. the point was expressly adjudged, in respect of the consideration of a deed ; and the same question arose and was determined in Filmer v. Gott, 4 Bro. Parl. Ca. 230. (Toml. ed.)
Assuming, then, that a mistake in the consideration could not be proved, I advance the proposition, that the consideration expressed in a deed is conclusive, and cannot be contravened, by parol evidence. The principles of law on that subject are correctly stated, by that very able and respectable author, Mr. Starkie. In vol. 3. p. 1004. he says: “Where the conveyance is mentioned to be in consideration of love and affection, as also for other considerations, proof may be given of any other; for this is consistent with the terms of the deed. But if one specific consideration be alone mentioned in the deed, no proof can be given of any other; for this would be contrary to the deed; for where the deed says, it is in consideration of such a particular thing, it imports the whole consideration, and negatives any other. The case where no consideration is expressed in the deed, is, according to Lord Hardwicke, a middle case; and he held, that proof, of a valuable consideration, in such a case, was admissible.” Undoubtedly, one not party to a deed and in prevention of fraud, is not estopped from showing the actual consideration, by adducing parol evidence. Rex v. Scammonden, 3 Term Rep. 474. Gilmer v. Gott, 4 Bro. Parl. Ca. 230. (Toml. ed.) Overseers of the Poor of New-Berlin v. Overseers of the Poor of Norwich, 10 Johns. Rep. 222. But that is not this case. Here the question arises between the parties to the deed.
The principles above stated have often been recognized and *315applied, by the courts in Westminster-Hall; nor are they any where contravened, so far as I know, except in the state of Virginia, where they seem to have a law peculiarly their own. Villers v. Beumont, Dyer 146. a. S. C. cited in Mildmay’s case, 1 Co. 176 a. Vernon's case, 4 Co. 1. Clarkson, v. Hanway and al. 2 P. Wms. 203. Peacock v. Monk, 1 Ves. 128. Shep. Touch, 510. Harvey v. Alexander, 1 Rand. 219. Duval v. Bibb, 4 Hen. & Mun. 113. The general law relative to the superior authenticity of written evidence to evidence by parol, is, in terms, universally admitted. Hence, it is a principle no where disputed, except in the instance above mentioned, that the consideration of a deed cannot be contravened, by parol evidence, or in any manner varied. But a case or two is to be found, where the principle is recognized, with how much consistency I shall enquire, that although you may not prove, by parol, a different species of consideration, yet that you may contradict its sum or amount. Just as if this was not a contravention of the principle, which declares the consideration inviolable, by parol evidence!
In Schemerhorn v. Vanderheyden, 1 Johns. Rep. 139. 140. it was determined, that the parties to a deed were precluded from setting up any greater or different consideration than the one expressed, as it would be contradictory to the written contract. The words of the court are: “The consideration for the assignment of the personal property of John B. Schemerhorn, is expressly stated in the deed of assignment itself, and the parties are thereby precluded from setting up any greater or different consideration.” That is precisely this case. Here the consideration expressed is 1800 dollars; and the plaintiff would prove, by parol, a greater consideration, to wit, 2800 dollars.
In Howes v. Barker, 3 Johns. Rep. 506. an action was brought to recover back a sum of money, which had been paid on the sale of land, the consideration of which was expressed to be nine pounds per acre. An over-payment was claimed; and to get at the fact, it became necessary to show, that the consideration was top great for the land conveyed. A mistake was alleged with respect to the insertion of the consideration money in the deed; but it was adjudged, that relief on this ground could alone be had in a court of chancery. It was said, by the party, that the consideration money expressed in the deed was more than ought to have been paid. But it was rul*316ed, by the court, that parol evidence evincing this, would be repugnant to the written contract. After stating the rule, that subsequent to reducing a contract to writing, every thing resting in parol becomes thereby extinguished, it was said, by Thompson, J. “I cannot perceive why any parol agreement, varying the consideration money expressed in the deed, does not fall within this rule, as much as if it related to any other part of the contract;" and then reference is made to Schemerhorn v. Vanderheyden as having expressly settled the point. The other judges were of the same opinion. Here, then, is a second determination precisely on the point of controversy, and in favour of the defendants. And this case, as well as the former, considers the expressed consideration as equally inviolable by parol evidence, as any other part of a deed.
In Maigley v. Hauer, 7 Johns. Rep. 341. it was adjudged to be “a settled rule, that where the consideration is expressly stated in a deed, and it is not said also and for other considerations, you cannot enter on proof of any other, for that would be contrary to the deed. This was so decided in Schemerhorn v. Vanderheyden, 1 Johns. Rep. 139. and again in Howes v. Barker, 3 Johns. Rep. 506. The same rule prevails in equity, according to the cases of Clarkson v. Hanway, 2 P. Wms. 203. and of Peacock v. Monk, 1 Ves. 128.; and the remedy for the party, if the deed be contrary to the truth of the case, is by seeking relief in equity against the deed, on the ground of fraud or mistake, as was intimated in the case of Howes v. Barker, and as was adopted in the case of Filmer v. Gott."
The same principle is implied from the determination of the late Chancellor, Kent, in Benedict v. Lynch, 1 Johns. Chan. Rep. 381. And in all the cases, the assigned reason, is, that the proof will be repugnant to the deed.
The case of Bowen v. Bell, 20 Johns. Rep. 338. 310. does not at all contravene the principles before settled. Strange it would be, if after three determinations of the supreme court of the state of New-York, unreversed and unquestioned, that the same court should decide in opposition to them. No such question was raised in the case. The plaintiff had given a deed, quit-claiming to the defendant three lots of land for the expressed consideration of 1000 dollars. Two of these lots the defendant had title to ; and for the third he promised to pay 250 dollars ; and a recovery was had for 225 dollars, 28 cents.
In giving the reasons, Woodworth, J. said: “When one spe*317cies of consideration is expressed, another or different one cannot be proved; neither can parol proof be admitted substantially to vary or contradict a written contract; but these principles are inapplicable to a case where the payment or amount of the consideration, becomes a material enquiry.” The expression “the amount of the consideration,” must be understood secundum subjectam materiam. In this particular case, it was necessary to enquire into the consideration. The quitclaim deed of three lots of land, for the expressed consideration of 1000 dollars. The plaintiff sought to recover for one of them only. Hence, no proof could arise from the deed; nor was the enquiry in contravention of the expressed consideration. Either this is a just solution of the case, or the court necessarily determined in opposition to three former decisions of the same court. The latter cannot be believed.
In Emery v. Chase, 5 Greenl. 232. it was determined, that where a valuable consideration in a deed, is expressed to have been paid, parol evidence is not admissible to prove another or different consideration, intended or promised, and not performed. This is equivalent to the assertion, that the consideration expressed is conclusive, and not to be varied by parol.
It would be easy to enlarge this list of authorities; but it is unnecessary.
I am not aware, that a different rule exists from the one I have contended for, except, as before-mentioned, in the state of Virginia.
In Garrett v. Stuart 1 M’Cord, 514., however, it was adjudged, that a different consideration from the one expressed in a deed, cannot in a court of law be shown; but that a greater or less consideration of the same character, may be proved; That is, if a deed is on the expressed consideration of 1000 dollars, you may not prove, that a certain quantity of wheat was agreed to be paid, as this would contradict the deed; but you may prove, that the sum agreed to be paid, was to have been 2000 dollars, for this would not contradict the deed! Such distinction I can never admit. A consideration of 2000 dollars is as essentially different from one of 1000 dollars, as wheat is different from specie; for they are of distinct natures, forms and qualities. The point is intuitively evident. The sum of 2800 dollars is not the sum of 1800 dollars, but they greatly differ; and the assertion or proof of the one is an entire contradiction of the assertion or proof of the other.
*318It has been said, that a consideration is necessary to be expressed in a deed, in order to rebut a resulting trust; and this is its sole object.
If our common deed is a bargain and sale only, which I do not admit, as such a deed is alone valid on a pecuniary consideration reserved, whereas our deeds on consideration of love and affection are held to be good; (4 Cruise's Dig. 127. 4 Kent's Comm. 454.) still it is incontrovertibly clear, that a consideration to rebut a resulting trust, never need be, and never is, expressed in the deed. It is sufficient if a consideration be proved to exist. Even the smallest sum, or a pepper corn, suffices. Fisher v. Smith, Moor 569. Jackson d. Hardenberg & al. v. Schoonmaker, 2 Johns. Rep. 230. Jackson d. Hudson & al. v. Alexander and al. 3 Johns. Rep. 484. 491. 2 Kent's Comm. 35. 4 Kent's Comm. 454. I am aware, that an idea of the kind has been mentioned; (1 Swift's Dig. 121.) but it is erroneous. The, books warrant no such principle. But suppose an expressed consideration, for the purpose in question, is necessary; it makes no difference in the case. The real consideration expressed in a deed, to attain this object is sufficient; and there is no incompatibility in holding, that the expressed consideration is for two purposes; the rebutting of a resulting trust, and the preservation of the evidence of the actual consideration. On the above principles, it cannot, with any propriety, be said, that the insertion of the consideration in a deed, is necessary at all; and as little, that it is solely for the purpose of rebutting a resulting trust. So far from this, it is a general truth, that the usage is to insert the actual consideration in a deed, for the purpose of preserving the evidence. And this fact is so public, general and universally notorious, that the courts are ex officio bound to take notice of it. 1 Chitt. Plead. 216. It is, therefore, a very essential part of a deed, made by the parties, the repository of the truth; and hence, it is protected, by the courts, from the contravention of inferior parol evidence.
It is readily admitted, that a receipt for money, whether in a deed of land or otherwise, is not conclusive evidence, that the money has actually been received. 3 Stark Ev. 1044. 1 Phill. Ev. 74. n. But this has no bearing on the point in question. The expression of a deed, that for a certain consideration the grantor has bargained and sold his land, is conclusive proof of that fact; but of another fact, that is, that the money has been *319paid, is not conclusive proof. The difference consists in this; that in the latter case, to protect mankind from fraud, it has been found expedient, in order to the general security and convenience, to make an exception to the rule, giving a conclusive effect to written evidence.
That an action of assumpsit lies to recover the consideration money for land sold, has been determined in the supreme court of the state of New-York. Shephard v. Little, 14 Johns. Rep. 210. Velie & al. v. Myers. 14 Johns. Rep. 162. But this is not at all opposed to the conclusive effect of the consideration expressed in a deed. In the same court, the doctrines are held, that the above-mentioned action lies, and yet that the consideration is conclusive, and not controvertible by parol evidence.
The case of Hatch v. Straight, 3 Conn. Rep. 31. has been cited, I scarcely know for what purpose. A deed of land was given, by a father, to one of his sons, of the value of 2000 dollars, on the expressed consideration of love and affection and five dollars. It was adjudged, that notwithstanding the consideration of five dollars, so disproportionate as it was to the value of the property, the deed, essentially, although not nominally and in fact, was a deed of gift; at least, so nearly so, as not to repel the presumption of its being advanced portion. No question arose, whether the money was reserved or paid; but the judgment was founded on the construction of the face of the deed.
On the whole, I am clear, that the parol evidence offered, was in contravention of the deed, and not admissible.
Bissell, J. was pot present when the case was argued, and of course, gave no opinion.New trial to be granted.