Bassett v. Bassett , 55 Me. 127 ( 1867 )

Walton, J.

This is an.action of assumpsit in which the plaintiff claims to recover the value of certain real estate which he says he conveyed to the defendant. The jury returned a verdict for the plaintiff. The defendant excepts to certain rulings of the presiding Judge. He has also filed a motion to have the verdjct set aside as against evidence, and because, as he says, the damages are excessive. We do not think the damages are so excessive, or the verdict in other respects so clearly against the weight of evidence, as to warrant us in setting it aside. Nor are we able to discover anything erroneous in the rulings of the presiding Judge.

1. The law is now well settled that, notwithstanding a deed acknowledges the receipt oí a consideration, the grant- or may show that none was in fact received, when his purpose is to recover the consideration and not to defeat the operation of the deed. Goodspeed v. Fuller, 46 Maine, 141.

2. While it is true that an action cannot be maintained for the breach of a parol promise to convey land, (such a promise being within the statute of frauds,) it is also true that when such a promise has been relied upon as the consideration of a conveyance, and the party promising neglects or refuses to keep his promise, the other party may recover the value of his property upon an implied assumpsit, and prove the special agreement, not as a basis of recovery, but as a declaration of the defendant bearing upon the question-of value, just as any other declaration of a party may be proved. If the plaintiff can show that the defendant was willing, and in fact agreed, to give another piece of property for it, that was worth $2000, it is a practical admission that the property conveyed was worth that sum. King v. Brown, 2 Hill, 485; Brown on Stat. of Frauds, § 118.

3. There is no rule of law prohibiting the alteration of a deed by the parties to it. An alteration by one party without the consent of the other will avoid it. But if an alteration is made by consent of all the parties to it, and the grantor assents that the grantee shall retain it in its altered form, such assent, says Mr. Greenleaf, amounts .to a redelivery, and warrants the jury in finding accordingly. A deed takes effect when it is delivered, and there is no rule of law prescribing to the grantor the order in which the several acts necessary to complete it shall be performed. He may sign and seal a blank and fill it up afterwards, or he may fill the blank first, and then sign and seal it; and, if a deed, once completed and delivered, is surrendered for the purpose, he may as well alter it over for the purpose of making a new deed, as to use a new blank; and if, when a new deed is thus made by altering an old one, it is again delivered with intent that it shall take effect and become operative as an instrument of conveyance, the law will give it such effect. 1 Greenl. Ev., (11th ed.,) § 568, a., and notes, and authorities there cited.

4. It was not necessary for the plaintiff to demand a deed of the defendant before’ commencing his suit, if the defendant had put it out of his power to comply with such a demand by conveying the land to another. " A demand wholly useless and nugatory need not be made.”

The rulings and instructions of the presiding Judge were in harmony with the foregoing principles of law. We fail to discover any error in them.

Motion and exceptions overruled. — Judgment on the verdict.

Appleton, C. J., Cutting, Dickerson, Barrows and Tapley, JJ., concurred.