Winci-i, J. (sitting in place of Cook, J.) ; Burrows, J., and Laubie, J.,
concur.
This is a suit to enforce a vendor’s lien, and Was heard upon the evidence. The recital in the deed between the parties to the receipt of the consideration money is sought to be rebutted by the testimony of only one witness who was a witness to the dieed. ITis testimony has no positive force. He simply states that he did not see any money pass between the parties. Every person in the court room at the trial could have truthfully testified to the same effect.
This witness’s opportunity for knowing whether the grantee paid the consideration money was not very great, if limited to the one time when the deed was executed before him. It is a matter of common knowledge that the money does not often pass at the time when the notary takes the acknowledgment and the witnesses witness the signature. They are called in for that purpose and not to witness the payment of the consideration.
Such solemn admissions in written instruments are not lightly to be put aside. There was no suggesting circumstances shown.
The plaintiff has failed to produce that preponderating evi■clence which the burden upon him requires.
The petition is dismissed.