¶1The opinion of the court was delivered by
¶21. We think the evidence given in this case, to show a failure of title, was all that could be expected to come from the plaintiff. • He showed, that the original title was not, upon the town records of the town where the land lay, in the defendants, and that, as far as could be ascertained, the defendants had no title of record. If, then, the defendants had any title, they alone could show it. We think this was sufficient to change the onus of proof.
¶32. If this action merely concerns the price of land, it is not a i matter, which, by the statute of frauds, is required to be in writing. j It has often been decided, that an action for the price of land, which { had already been conveyed, might be maintained upon merely oral^ evidence.
¶43. The recitals in the deed of the amount of the consideration and the receipt of payment will not estop the party, as has been often held. These are matters, which are indeed conclusive to the extent, for which they are inserted in the deed, that is, to give effect to the deed, and no farther.
¶54. The fact that the plaintiff gave his note for $40,00 of the $50,00 does not appear' to us to make any. difference in the case. This was but a mode of payment'. The testimony offered did not tend, in any sense, to contradict the note, or show that it was not to be paid, and paid according to' its terms, for all that was so to be, but the entire price was, in a certain event, to be repaid.
¶65. If the evidence given to sustain the action was subject to any *498valid legal objection, it was, that it tended to contradict the deed. The deed was in terms a mere quitclaim, or release, of the defendants’ title. It is now argued, that the effect of the testimony given upon the trial of this action is to convert this deed into a warranty of title. If so, it does vary and enlarge its operation by merely oral evidence. But we are inclined to believe, such is not its fair construction. It seems to us nothing more than leaving the price to rest wholly in oral contract. If that be so, there is no more difficulty in the case, than if it had all been put in writing. It seems to have been the execution of a quitclaim deed by the defendants for the price of fifty dollars, for the whole lot, if the defendants had title to it, and in the same proportion for all they had title to. This, in principle, is precisely like a ease in Windsor county, which was three times argued, and finally sustained, to recover back an over payment of the price of land sold by the acre, — there proving, upon admeasurement, to be less than was supposed at the time of sale and payment of the price. In that case the deed described the land as supposed to contain so many acres. A note was given for the price, at the agreed price by the acre, and indebitatus assumpsit was sustained, after the payment, to recover back the over payment.
¶7Judgment affirmed.