at the present term, delivered the opinion of 'tW Court In deciding the question which arises in this case» *200no little difficulty has been felt, from the contrariety of opinions which have been expressed by judges of the greatest eminence and distinction, in cases very analogous, if not exactly similar to the present; and the importance of the principle now to be established as a-rule of evidence, merits the most full and deliberate consideration. The question then presented to this Court, for their adjudication, is simply this. Can marriage 'be given in evidence as the consideration of a deed of bargain and. sale, which is expressed .to be made for a money consideration only? The facts of the case are as follows: Enoch Betts being considerably indebted to the Union Bank of Maryland, and being about to be married to Elizabeth Ball, on the 17th of March 1819, executed a deed, by which he conveyed to her, arid her heirs, a lot or parcel of ground in the city of Baltimoire, for the consideration mentioned in said deed, of $4000. On the twenty-fourth day of the same month,- and the same year, for the purpose of securing the payment of $1700 to the Union Bank of Maryland, he executed to the said bank a deed of the same lot or parcel of ground, in trust, to sell the same for the payment of said debt, upon the terms and conditions therein specified. On the 35th of September 1820, The President and Directors of the Union Bank of Maryland filed their bill in. the court of chancery, for the purpose of vacating and annulling the above mentioned deed to Elizabeth Ball, upon the ground that they had no knowledge of its existence, at the time the aforesaid deed was made to them. It is admitted that the consideration of $4000, specified in said deed; never was .paid; but it is. contended that the deed of conveyance may be supported, by proving that the consideration in. truth was marriage, and that such proof is legally admissible; It is not deemed necessary to enter into a more full detail of the fact's and-circumstances belonging to'this case; because if the proof that marriage was the real consideration, is excluded By the rules of evidence upon the subject, the chancellor’s decree, orderihg a sale of the property for the benefit of the bank, under the deed of the'.34th of March 1819, and annulling that of the 17th of March of the same -year, to Elizabeth Ball, now Elizabeth Betts, ought- to be affirmed. As has already-been remarked, the authorities upon this pj}rt of the law of evi*201dence are contrariarit, and Cannot be reconciled. There is, however, one great and leading principle in the law of evidence relative to this subject, in the affirmance of which they all concur. It is this, that no evidence is admissible which contradicts the deed. In Maigley vs. Hauer, 7 Johns. Rep. 341, where it was attempted to prove by parol evidence an additional consideration to the one expressed in the deed, the court say, “it is a settled rule, that wheiethe consideration is expressly stated in a deed, and it is not said also, and for other considerations, you cannot enter into proof of any other, for that would be contrary to the deed. This was so decided by this court in Schermerhorn vs. Vanderdeyden, 1 Johns. Rep. 139, and again in Howes vs. Barker, 3 Johns. Rep. 506. The same rule prevails in equity, according to the cases of Clarkson vs. Hanway, 2 P. Wms. 203, and of Peacock vs. Monk, 1 Ves. 127; 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 m the case of Howes vs. Barker, and as was adopted in the case of Fitmer vs. Gott, 7 Bro. Part. Cas. 70.” In the case of Peacock vs. Monk, 1 Ves. 128, a bill was filed, claiming the benefit of a trust under a deed, and the point was, whether the plaintiff could prove a valuable consideration, as no consideration was expressed in the deed. Lord Hardwicke held, that the proof ought to be read. “It differed, he said, from the common ease, upon which the objection is founded, for to be sure, where any consideration is mentioned, as of love and affection only, if it is not said also, for other considerations, you cannot enter into proof of any other; the reason is because it would be contrary to the deed, for when the deed says it is in consideration of such a particular thing, that imports the whole consideration, and is negative to any other. But this is a middle case, there being no consideration at all in the deed.” Thus it appears that the supreme court of New-York have adopted the principle established by Lord Hardwicke, and excluded the proof of any other consideration, where one is expressed in the deed, and it is not said for other considerations, on ihe ground that the a <mission of such proof would be contrary to die deed. This doctrine is certainly not reconcileable to the decision made *202in Villers and Bedmont, 2 Dyer, 146. In that case the consideration in a deed of bargain and sale of lands was stated to be a sum of money, but it was averred, and found by the jury, that the indenture was made “as well in consideration of marriage, (to make it a jointure and bar dower,) as of the said sum of money;” and it was adjudged, that although there was a particular consideration mentioned in the deed, yet an averment might be made of another consideration, which stood with the indenture, and which wás not contrary to it. Which decision has since been sanctioned by Lord Coke. Thus it appears that both these conflicting decisions concur in the principle, as indisputable law, that no averment of any consideration out of the deed can be made when it would tend to contradict the deed, 1 Phillip’s Evidence, 425, 426.
It is Hot intended by this adjudication to recognize, and adopt the rule in evidence as laid down by either of those high authorities, but simply to decide the question involved in this case upo* the peculiar facts and circumstances which belong to it, It is admitted that the consideration mentioned in the deed now before the court, was merely nominal, and never was in fact paid. Can the party then, claiming under it, be permitted to prove that the consideration expressed in the deed was not the true consideration, but that the consideration was marriage? Upon a careful examination of the authorities relative to this subject, it appears that the greatest extent to which they have gone, has been to allow an additional consideration to be proved, which not repuguant to the one mentioned in the deed. But where a deed is impeached for fraud, the party to whom the fraud is imputed will not he permitted to prove any other consideration in support of the instrument. 1 Phillip’s Evid. 426. The case of Clarkson vs. Hanway, 2 P. Wms. 203, is to the same effect. In that case the Master of the Rolls says, "judging upon the face of a deed is judging upon evidence which cannot err; whereas the testimony of witnesses may be false.” It is. the consideration expressed in the deed impeached as fraudulent, which excludes the proof of any other consideration in support of it, and not the circumstance that the party charged with the fraud has relied upon such consideration In his answer, although such reliance might render the proof *203still more objectionable, because he had thereby put his defence upon the same ground. But in this ease the proof that marriage was the real consideration, and not money, as mentioned in the deed, was inadmissible, as being contradictory to the language of the instrument, and not an averment of another consideration, not inconsistent with, hut additional to the one expressed. In 1 Phill. Evid. 426, it is said, that the rule which the authorities appear to have established is, “that although a consideration is expressed, some other additional consideration may be shown not inconsistent with the former.” The consideration then, which was offered to be proved in this case, (though a valuable one,) not being in addition to the one expressed, but as a substitute for it, was repugnant to the averment of the deed, and upon the admitted principle, was inadmissible as being contrary to it
To give the rule a greater latitude would, it is conceived, be repugnant to the general principles and policy of thé laW in relation to titles to real property, the evidences and muniments of which are required to be in writing, and enrolled for public inspection and information in cases of contracts made relative thereto.
The objection, that the deed to Mrs. Betts only took effect from the time of its delivery, cannot be sustained. As a general principle of the law, there is no doubt that delivery is essential to the legal existence and validity of a deed; hut our legislative enactment puts that part of the controversy at rest, by declaring the deed to be efficient and operative from the time of its date. •
It has been doubted whether the deed could be supported, even if proof that marriage was the consideration could be received. That ante-nuptial settlements, made in consideration of marriage, are good even though the party be then indebted —See Reade vs. Livingston, 3 Johns. Ch. Rep. 494, and the eases there cited; hutas the evidence, that marriage and not money, was the true consideration of the deed in this case, is not admissible, it follows that the decree; of the chancellor must be affirmed.
Martin, J. dissented,
DECREE AFFIRMED