This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
75. Russ v. Mebins, 16 Cal. 350; Cheesman v. Nicholl, 18 Colo. App. 174, 70 Pac. 797; Kimball v. Walker, 30 111. 482, 511; Aber-nathie v. Rich. 256 111. 166, 99 N. E. 883; Acker v. Priest, 92 Iowa. 610, 61 N. W. 235; Maxwell v. Mecall, 145 Iowa, 687, 124 N. W. 760; Beavers v. Mckinley, 50 Kan.
602, 32 Pac. 363, 33 Pac. 359; Goodspeed v. Fuller, 46 Me. 141; Mckusick v. Washington County Commissioners, 16 Minn. 151; Strong v. Whyback, 204 Mo. 341, 12 L. R. A. N. S. 240, 102 S. W. 968; Morse v. Shattuck, 4 N. H. 229; Farrington v. Barr, 36 N. H. 86; Mccrea v. Purmort, 16 Wend. (N. Y.) 460, 30 Am. Dec. 103; Deaver v. Deaver, 137 N. Car. 240, 49 S. E. 113; Finlayson v. Finlay-son, 17 Ore. 347, 11 Am. St. Rep. 836, 3 L. R. A. 801, 21 Pac. 57.
So such acknowledgment is conclusive for the purpose of supporting the conveyance as a deed of bargain and sale. Fisher v. Smith, Moor. 569; Smith v. Lane. 1 Leon 170; Wilt v. Franklin, 1 Binn. 502; Sheppard's Touchstone-223.
76. Story Equity Jur, Sec. 1199; 3 Pomeroy, Eq. Jur. Sec. 1036; Davis v. Jernigan, 71 Ark. 494, 76 S. W. 554; Feeney v. Howard, 79 Cal. 525, 4 L. R. A. 826, 12 Am. St. Rep. 162, 21 Pac. 984; Luck-hart v Luckhart, 120 Iowa, 248. 94 N. W. 461; Philbrook v. Delano, 29 Me. 412; Weiss v.
Any receipt.77 Likewise the recital in the instrument as to the amount of the consideration is ordinarily not conclusive,78 for the same reason, that such recital is not intended to have a legal effect, is not, so to speak, the "integration of a legal act,"79 but is merely the statement of a fact, and is as such open to explanation or contradiction. If, however, the recital of the consideration is intended to have a contractual or other legal operation, creating or divesting a right, it is conclusive upon the parties to the instrument.80 It is for
Heitkamp, 127 Mo. 23, 29 S. W. 709; Graves v. Graves, 29 N. H. 129.
77. Morton v. Morton, 82 Ark. 492, 102 S. W. 213; Wood v. Bangs, 2 Penn. (Del.) 435; Sullivan v. Lear, 23 Fla. 463, 11 Am. St. Rep. 388, 2 So. 846; Koch v. Roth, 150, 111. 212, 37 N. E. 317; Rhodes v Walker, - (Ky.), - 115 S. W. 257; Bassett v. Bassett, 55 Me. 127; Fowlkes v. Lea, 84 Miss. 509, 68 L. R. A. 925, 2 A. & E. Ann. Cas. 466. 36 So. 1036; Shelton v. Cooksey. 138 Mo. App. 389, 122 S. W. 331; Bingham v. Weider-wax, 1 N. Y. 509; Marcom v. Adams. 122 N. C. 222, 29 S. E. 333; Singletary v. Goeman, 58 Tex. Civ. App. 5, 123 S. W. 436; Spangler v. Ash well, 116 Va. 992, 83 S. E. 930; Halvorsen v. Hal-vorsen, 120 Wis. 52. 97 N. W. 494.
78. Hitz v. National Metropolitan Bank, 111 U. S. 722. 28 L. Ed. 577; London v. G. L. Anderson Brass Works, 197 Ala. 16, 72 So. 359; Vaugine v. Taylor. 18 Ark. 65; Byers v. Locke, 93 Cal. 493, 27 Am. St. Rep. 212, 29 Pac. 119; Lloyd v. Sandusky, 203 111. 621, 68 N E. 154; Allen v. Rees. 136 Iowa, 423. 8 L. R. A. N. S. 1137. 110 N. W. 583; Goodspeed v.
Fuller, 46 Me. 141; Wilkinson v. Scott, 17 Mass. 249; Smith v. Maxey. 186 Mich. 151. 152 N. W. 1011; Bolles v. Sachs, 37 Minn. 318, 33 N. W. 862; Goodman v. Smith, 94 Neb. 227, 142 N. W. 521; Mccrea v. Pur-mort, 16 Wend. (N. Y.) 460, 30 Am. Dec. 103; Hebbard v. Haughian, 70 N. Y. 54; Michael v. Foil. 100 N. C. 178, 6 Am. St. Rep. 577, 6 S. E. 264; Conklin v. Hancock, 67 Ohio St. 455, 66 N. E. 518; Grace v. Mcdowell. 60 Ore. 577, 120 Pac. 413; Henry v. Zurflieh, 203 Pa. 440, 53 Atl. 243; Miller v. Livingston, 36 Utah 174, 61 Pac. 569; Kickland v. Menasha Wooden Ware Co., 68 Wis. 34, 6.0 Am. Rep. 831, 31 N W. 471.
79. See 4 Wigmore, Evidence Sec., 2425 et seq.
80. Wallace v. Meeks, 99 Ark. 350, 138 S. W. 638; Hilgeman v. Sholl, 21 Ind. App. 86, 51 N. E. 728; Milich v. Armour Packing Co., 60 Kan. 229, 56 Pac. 1: Gully v. Grubbs. 1 J. J. Marsh. (Ky.) 387; Kramer v. Gardner. 104 Minn. 370. 22 L. R. A. (N. S.) 492, 116 N. W. 925; Baum v. Lynn, 72 Miss. 932, 30 L. R. A. 441. 18 So. 428; Halt'erty v Searce. 135 Mo. 428, .17 S. W. 113, 255; this latter reason that the recital of the payment of the consideration is conclusive for the purpose of supporting the validity of the conveyance.81 Such recital involves the statement of a dispositive or vestitive fact, and as such is not susceptible of contradiction, it standing, in this regard, in the same category as the words of conveyance, or the description of the property conveyed. It is for a like reason that such recital cannot be contradicted for the purpose of showing a resulting trust in favor of the grantor.82 The operation of the recital is to vest the beneficial interest in the grantee, and the recital cannot be contradicted in order to deprive him of such interest.
There has been considerable discussion of the question whether the recital as to the consideration precludes the parties from showing, not that the consideration is different in amount from that recited, but is different in character therefrom. The difference in character ordinarily referred to in this connection is the difference between a valuable consideration and a good consideration, so called. The expression "good consideration," means, however, merely a lack of valuable consideration. Consequently, the question whether an instrument which recites a valuable consideration can be shown to be based on a good consideration involves merely the question whether it can be shown to be a gift, while the converse question, whether an instrument which recites a good consideration can be shown to be based on a valuable consideration, involves merely the question whether it can be shown not to be a gift. Conceding that the recital is not conclusive as to the amount of the valuable consideration, and the cases are in apparent unison to that effect, it is not readily perceptible why it should be conclusive as to whether there is any valuable consideration whatsoever. The cases 83 adverse to the right to show such a different character of consideration, as it is expressed, ordinarily involve the right to show that the conveyance was or was not an advancement, for the purpose of settling the grantor's estate upon his death, or that it was or was not a gift, for the purpose of determining the course of descent from the grantee, and they are usually based on the theory that an attempt to contradict the recital by showing the presence or absence of a valuable consideration involves an attempt to change the legal operation of the conveyance. But, it is submitted, the operation of the conveyance, as transferring the grantor's rights, is the same, whether he does or does not receive something of value in exchange therefor, and this is so even though the presence or absence of such a consideration may affect the grantee's rights as regards other persons, or the rights inter se of persons claiming under the grantee. The very decided weight of authority is to the effect that the recital of a valuable consideration does not preclude a showing that there was no such consider ation,84 and it has likewise been decided that a recital v. Darnell, 89 Wash. 226, 154 Pac. 183; Monongohela Tie & Lumber Co. v. Flannigan, 77 W. Va. 162, 87 S. E. 161; 4 Wig-more, Evidence Sec. 2433.