Page:Dakota Territory Reports.djvu/42

 in the deed, and that was all that was ever agreed to be paid.

They further allege that plaintiff received from Walter A. Burleigh, improvements, in the town of Bon Homme, of the value of $100 as a further consideration for the sale of said land to defendants. And they “ expressly deny all matters set up in plaintiff's petition and supplemental petition, except what is admitted."

The cause was tried to the court on depositions, and a judgment rendered in favor of plaintiff for the sum of $500 and costs. From this judgment, defendants appeal.

Moody & Hand, for appellants.

Neither the petition nor the proofs in this case, show any cause of action against the defendants below, (the plaintiffs in error here.) The petition and amended petition set out a contract by defendants, to erect upon their own land, a steam saw-mill. Not to erect and maintain one.

The proofs show that the contract, if one was made, was a verbal one, and was a part of the contract to sell and convey the lands to defendants by the plaintiff, and was a condition of such sale. Such contract, if one existed, was merged in the deed, and parol proof thereof was wholly incompetent and improper.

This is in no sense like a case, where a different consideration from that expressed in the deed, was paid or agreed to be paid, and is allowed to be shown by parol proof, for the effect of this alleged agreement was to limit the use of the property conveyed, or a portion of it, to a particular purpose, thus changing the deed, from one absolute upon its face, to one with a condition annexed. This cannot be done by parole proof. (18 Michigan, 354; 3 Nevada, 120, 132; Hilliard, Real Prop., Vol. 1, 77, 348, 353, note; Kent's Com., Vol. 4, 144, 125 side page, and 143 note C.; Willard's Eq., 286; Starkie's Evidence, 1002, etc.; 2 Hilliard, Real Prop., 275, etc., 228, § 30; 46 Ills., 297 and 163, and 250; 1 Greenleaf, § 275, etc.; 2 Kernan, 561; 6 Smith, 39.) The action was one upon the equity side of the court strictly, to enforce a specific performance of