Opinion
December Term, 1825.
Parol evidence shall not be received to contradict an acknowledgment in a deed of the payment of the purchase money.
ASSUMPSIT, tried in HERTFORD, on the express promise of defendant's intestate. The facts were that the plaintiff, on 28 August, 1822, had executed a writing in the following words:
(26) L. Martin for appellant.
Hawks for appellee.
August 28, 1822. Received of James Clay $450, in full payment for two negroes, ___ and Dave, her son, for which negroes I do warrant and forever defend the right and title of said negroes against all claim or claims whatsoever; and likewise do warrant them to be sound and healthy. Whereunto I put my hand and seal.
THOMAS SPIERS. [L. S.]
Witness, G. M. SMITH.
Afterwards, the plaintiff and Clay being together, Clay called on a witness and informed him that he wished him to take notice that the writing above was given under the following conditions, towit: That Clay had loaned to the plaintiff $100, and that Clay was about to go to Virginia; if on his return plaintiff should pay the $100, then plaintiff should retain the slaves named in the foregoing writing; but if he did not pay the $100, then Clay was to pay plaintiff $350 in addition to the $100, and keep the slaves. Clay went to Virginia, leaving the slaves, and shortly thereafter died without returning; his administrator took possession of the negroes, and this action was brought for the $350, on the express promise of Clay.
The presiding judge, Daniel, charged the jury that the bill of sale under seal acknowledged the receipt of the purchase money of the slaves, and no parol evidence could be received to contradict it; that the parol evidence had been permitted to enable the plaintiff to show that the deed, or bill of sale, had been fraudulently obtained, and if the (23) parties understood what they were about when the writing was executed, and there was no actual fraud, then the acknowledgment of the payment of the purchase money could not be contradicted by parol evidence. The jury found for defendant; plaintiff moved for a new trial, which was refused, and from the judgment rendered he appealed to this Court.
The CHIEF JUSTICE delivered the Court's opinion in these words: The affirmance of this judgment is of course under Brockett v. Foscue, 8 N.C. 64, and the other adjudications of this Court to the same effect.
Affirmed.
Cited: Shaw v. Williams, 100 N.C. 280.