Unknown County MsArchives Court.....Kerr, John  1834
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Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi
Written: 1834
Recorded: 1818

JOHN KERR, ADMINISTRATOR, vs. THOMAS CALVIT.

pages 115-119

Parol evidence is not admissible to shew a mistake in the quantity of acres 
mentioned in a deed, where no fraud is proved.

Where articles of agreement are consummated by a deed, the articles of 
agreement are a nullity.

A contract cannot rest partly in writing, and partly in parol; every thing 
resting in parol, is extinguished by the written contract.

A different consideration from that stated in a deed, cannot be proved by 
parol evidence.

The court incline to the opinion, that in a sale of a tract of land, where the 
quantity of acres warranted in the deed is not to be had, if the failure be 
entire, it is a good defence to an action at law for the purchase money, but 
not where there is only a partial failure, unless it be combined with fraud.


OPINION OF THE COURT-By JUDGE HAMPT0N

This action was instituted on a note of hand, made by Huldah S. Covington, now 
the wife of defendant, Thomas Calvit, and by John Vandervall, dated 14th of 
October, 1818, for two thousand dollars, payable to plaintiff, first of 
January, 1820. It appeared in evidence, under the general issue, that this 
note had been given in part consideration of a tract of land, sold by 
plaintiff’s agent to Mrs. Covington, then a feme sole, and defendant 
contended, that there had been a partial failure of consideration, and 
fraudulent misrepresentations in effecting the sale, which would entitle him 
to a reduction of the amount stipulated for payment. The judge submitted to 
the jury the questions: 1st. Whether the land was sold in gross or per acre: 
2d. Whether there were fraudulent representations on the part of plaintiff’s 
agent? The jury found a verdict for eight hundred dollara and twenty-five 
cents, and plaintiff moved for a new trial for reasons filed, which question 
is referred. It is conceded that the deed contained a warranty for not more 
than 240 or 250 acres, neither specifically conveyed more, and that the 
consideration set out in the deed, and for one half of which this note was 
given, was four thousand dollars. In addition to the notice which the 
purchaser had from this express language of the deed, it is in evidence, that 
she was duly notified of the deficiency of the land, before she took the deed, 
and agreed to its stipulations. It is not pretended that any mal-practice was 
used at the time of signing the note and receiving the deed, such as a mis-
recital of the terms of the deed to one unable to read, but all the evidence, 
which by any construction could imply fraudulent representations, goes to a 
period anterior to the deed, and is removed thereby, where the party states 
the true quantity, and the true price, of which Mrs. Covington could not but 
be cognizant; all that the deed engages for stands complete, no deficiency in 
regard to the quantity it warrants; but it is sought to affect the 
consideration it acknowledges, by a reduction, in consequence of conversations 
which passed between the parties prior to the consummation of the contract. If 
there was any deficiency of what the deed calls for, under our statute, this 
defence would well obtain. But how can we depart from the covenant contained 
in the deed, which settled the contract, to loose conversations long anterior 
to it? No part of the evidence reported by the judge, has any immediate 
relation to the time of the delivery of the deed. A witness, named James 
Bouth, whose deposition is in evidence, says he was a subscribing witness to 
the deed, but not present at its delivery, and cannot therefore speak as to 
what passed between the parties. That at the time of signing the deed, he 
expressed some surprise at the quantity, being only 250 acres, since he 
understood the sale to have been for four hundred acres, the quantity he 
always supposed till then, contained in the tract. Terry told him, that Mrs. 
Covington might get four hundred acres, more or less; denies that Terry ever 
told him he had warranted the four hundred acres. Witness lived on the land a 
year, and all this time supposod the tract to contain four hundred acres. A 
witness of the name of Fake, whose deposition is in evidence, states, that he 
was present at the sale, and that two hundred and fifty acres was the 
quantity, and the consideration, four hundred dollars. He is the only witness 
who appears to know any thing of what passed between the parties at the time 
of closing the contract, and he says nothing of any improper inducements 
having been presented to Mrs. Covington, to accept the deed. The inference 
from all the evidence is clear and satisfactory, that Terry sold the land for 
two hundred aud fifty acres, on warranty; yet believing it probable, like many 
of the old surveys, it might contain more, perhaps five hundred acres, and 
that Mrs. Covington bought it, content with the assurances of the deed, yet 
under reasonable hopes, and perhaps belief, that the tract contained more, 
perhaps four hundred acres. This is certainly more reasonable, than the 
inference contrary to express tenor of the deed, that she bought the land at 
ten dollars per acre, and stipulated to pay for one hundred and fifty acres, 
at this rate, more than the vendor was willing to warrant.

In Hawes vs. Baker, 3 Johnson’s Rep. 506, the marginal summary of the 
principles of decision is, "where B. by articles of agreement covenanted to 
sell and convey to H. a tract of land, at nine pounds per acre, and a deed was 
accordingly executed, and the purchase money paid according to the quantity of 
acres expressed in the deed, it was held, that no parol evidence was 
admissible to shew, that there was a mistake in the quantity mentioned in the 
deed, and that an action for money had and received, to recover back the money 
paid for the number of acres alleged to be deficient, was not maintainable," 
Considering the cases analagous in principle, we shall adopt the language of 
Thompson, judge. There is no instance of any fraud having been practised on 
the plaintiff. The most that can be alleged is, that there has been a mistake 
with respect to the insertion of the consideration money in the deed. The 
contract between the parties, according to the articles of agreement, was 
executory, and having been executed and consummated by the deed subsequently 
given, the agreement became null and of no further effect. This is not like 
the case of Waiver vs. Bentley, 1 Caines’, 48. The court there sustained an 
action for money had and received, on the ground that the defendant having 
altogether failed to perform the contract on his part, the plaintiff had his 
election, either to proceed on his covenant for damages, or to disaffirm the 
contract, and to bring his motion to recover back the money he had paid. The 
present case, however, is not one where the plaintiff claims the right of 
disaffirming the contract, but has consummated it by the acceptance of a deed. 
The deed cannot be considered as an execution of the contract in part only. If 
an execution at all, it must be of the whole contract, and the articles of 
agreement are a nullity. If so the testimony offered in support of the 
plaintiff's action, to shew that the consideration expressed in the deed was 
more than ought to have been paid, could be viewed in no other light than as 
parol evidence, repugnant to the written contract. That such testimony is not 
admissible, has been repeatedly ruled in this court. 2 Caines, 171; 1, 
Johnson's Reports, 418. The language of the court in those cases, was, that it 
cannot be a safe or salutary rule, to allow a contract to rest partly in 
writing, and partly in parol. Whenever it is reduced to writing, that is to be 
considered the evidence of the agreement, and every thing resting in parol, 
becomes thereby extinguished."

In the case of Scharmarhorne vs. Vanderhyder, 1 Johnson's Rep. 140, the court 
say, "the consideration for the assignment itself, and the parties are thereby 
precluded from setting up any greater or different consideration. To allow of 
parol evidence for that purpose, would be to extend or substantially vary the 
language of a written contract. Though the promise in question may have been 
made previously to the assignment, yet after the execution of the instrument, 
we must presume, that the father and son altered the consideration mentioned 
at first, and finally acted upon that which is set forth in the assignment." 
So in the case before us, we must presume, after the execution of the deed, 
that the consideration therein mentioned was the one finally agreed on between 
the parties. In the absence of fraud, which we consider this case not 
corrupted with, it will readily be conceded, on the basis of these and many 
other authorities in the books, that unless under our statute, the 
consideration for the land sold by the agent of Dr. Kerr to Mrs. Covington, 
could not be impeached, by parol evidence, having relation to a period 
anterior to the delivery of the deed, the statute, as we have before remarked, 
will not alter the case, except where there be a deficiency of the quantity 
mentioned in the deed.

As our statute broaches the contract, so as to let in an inquiry into the 
consideration, we do not deem it necessary to look into the common doctrine in 
regard to defences, to be set up, where there has been fraud, a partial, or 
entire failure, or want of consideration. Without intending solemnly to 
adjudicate these points, we intimate an opinion, that in the absence of fraud, 
no defence can be set up at law on pretence of a partial failure of the 
consideration-but such defence can be made, where there is an entire want of 
consideration (ab initio) or an entire failure subsequently, whenever such 
failure would subject the plaintiff; and where a partial failure is combined 
with fraud, we are inclined to the opinion such defence would be heard — 1 
Campbell 40, note 2, Campbell 346, 3 Johnson's Rep. 506. The first of these 
points most doubtful.

The cases in 1 and 2 Bay, proceed much upon the civil law principles. 
Considering all the circumstances in this case, we are of opinion, that a new 
trial be granted.

Let a venire de novo be awarded, and the costs abide the final result.

Judges ELLIS and WINSTON concurred.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834.

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