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selves had, by their own acts, put a construction on the covenant, and that the Court could not say the contrary (1). But this case has been frequently disapproved of (2), and a different rule is now established* "It cannot be a legal mode of construction, (said the Master of the Rolls, in a case of this kind,) that a party who has done an act, which he was not bound to do, or from a mistake, should therefore be bound for ever without the power of retracting." (3)

Sect. II.

Of the Admissibility of Parol Evidence to vary or discharge
Written Instruments.

It is a general rule of law, that parol evidence cannot be admitted to contradict, add to, or vary, the terms of a will, deed or other written instrument. First, with respect to wills;

The statutes of the 3 2d and 34th of Henry VIII., which Wliugave the power of devising lands by a lust will and testament in writing, must clearly have intended, that whatever is effectual and to the purpose, ought to be in writing and sufficient without the aid of words not written; and therefore no parol evidence of the testator's intention can be admitted to controul or enlarge the terms of the will (4). An additional reason for this rule is supplied by the statute of frauds, which enacts, that all devises of lands, &c. must be in writing, and are not revocable except by some other will or codicil, or by some act as cancelling, &c. With, regard to wills of personal property, it is evident from the

2 2d section of the statute of frauds, that no unwritten declarations of the testator can be admitted to vary any bequest; for that section enacts, "that no will in writing

(1) Cooke v. Booth, Cowp. 819. (3) Moore v. Foley, 6 Ves. jun. 138.

(z) Baynham v. Guy's Hospital, (4) Brett v. Rigden, Plowd. Com.

3 Ves. jun. 298. Eaton v. Lyon, 3 Ves. 34c. Lord Cheyney's case, 5 Rep. 68. juc. 694. Iggulden V. May, 9 Ves. jun. Bertie v. Lord Falkland, 1 Salt 131. 333. a Bos. 3c Pull New Rep. 4Ji- 2 Vesn. 333. S. C.

S.C.

'E e 4 concern

concerning goods, chattels, or personal estate, shall be repealed, and that no clause shall be altered or changed, by any words or will by word of mouth only, except the same be in the lifetime of the testator committed to writing, and after the writing read to the testator, and allowed by him, and proved to be so done by at least three witnesses." (i)

Deeds. 2. Parol evidence is not admissible to contradict, or

vary, or add to, the terms of a deed (2). "It would be inconvenient," says Lord Coke, "that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of the parties, should be controuled by an averment of parties to be proved by the uncertain testimony of slippery memory; and it would be dangerous to purc hasers and all others in such cases, if such nude averments against matter in writing should be admitted." In an action of debt therefore on a bond conditioned to pay a sum of money on a certain day, the defendant cannot shew that the bond was intended as an indemnity against another bond. (3)

In an action on a bond a party will not be permitted to shew a condition different from that expressed in the bond; and a conveyance cannot be averred by parol to be to another use or intent than that expressed in the conveyance. But there is a difference in this respect between an use and a consideration. It is an established rule, that a party may aver another consideration, which is consistent with the consideration expressed; but no averment can be made contrary to, or inconsistent with, that expressed in the deed (4). Thus, if a deed of bargain and sale is expressed generally to be made "for divers good considerations," it may be

(il Brown v. Selwin, Forrest. 140. (3) Mease v. Mease, Cowp. 47. I.owfielrl v. Sioneham. 2 Stra. I16l. (4) 2 Roll. Abr. 786. (N), pi. I.

Cambridge v. Rouf, 8 Ves. jun. 21. Mildmay's case, I Rep. 176. Lord

(1)CountessofRutlaml'scase,5 Rep. Cromwell's case, aKep.76. Bedell's

46. Bacller v. Millerd, 2 Vemr. 107. case, 7 Rep. 39.
Tinney v. Tinney, 3 A»k. 8. Haynes
*. Haie, 1 II. Black. 65y.

averred, averred, that the bargainee gave money or other valuable consideration (1). That such an averment may be taken, says Lord Coke, which stands with the deed, although it be not expressly comprised in the deed, is proved by the case of Villers and Beamont(2), where the consideration ill a deed of bargain and sale of lands was stated to be a sum of money, but it was averred and found by the jury, that the indenture was made "as well in consideration of marriage (to make it a jointure and bar-dower) as of the said sum of money;" and it was adjudged, that, although there was a particular consideration mentioned in the deed, yet an averment might be made of another consideration, which stood with the indenture, and which was not contrary to it *. A fortiori, adds Lord Coke, the averment

(1) % Roll. Ab. 786. (N). 1 Rep. (1) aDyer, 146.1. Vernon's case, 176. cited (4), ante, p. 424. 4 Rep. 3. S. P. And see Craythorne

v.Swinburne, 14 Ves. 170.

* In the case of Villers and Beamont, above cited, (a Oyer, 146. a.) an elaborate argument is to be found in support of the position, that " where a consideration is expressed in a deed of gilt or grant, no other cause can be averred; but if nn cause is expressed, that a cause may then be averred out of the deed." The report adds, " that three Judges argued to the contrary, and that the effect of that which is found by the assignment of.' as well in consideration of the said marriage, Sec. as of the sum,' &c. is contained within the indenture, and so their finding is not contrary to it." In the case of Peacock v. Monk, (1 Ves. 118.) Lord Hatdwicke makes the same distinction. A bill in that case v. as filed, claiming the benefit of a trust under a deed, and the point was, whether the plaintiff could prove a valuable consideration, as no consideration was expressed in the deed. Lord Hardwicke held that the proof ought to he read. "It differed," he said, "from the common case, upon which the objection is founded; for, to be sure, where any consideration is mentioned, as of love and affection only, if it is not said also, ' for other considerations,' you cannot enter into proof of any other; the reason is, because it would be contrary to the deed; for when the deed says, it is in consideration of such a particular thing, that imports the whole consideration, and is negative to any other. But this is a middle case, there being no consideration at all in the deed." All the authorities agree, that, where the deed is not impeached for fraud or other illegal matter, no consideration can be averred or proved contrary to that expressed in the deed; and, further, the cases referred to in the text appear to have established, that it is not considered to he contrary to or inconsistent with a deed, to prove another consideration in addition to the consideration expressed.

may may be made, where no certain consideration is mentioned, but the deed is general "for divers good considerations;" for then the averment (that the bargainee gave money, &c.) is but an explanation and particularizing of the general words of the deed, which include every manner of consideration; and in all these cases, the matter so averred is traversable and issuable. So, where no consideration is expressed in the deed, a party, claiming the benefit of a trust under the deed, may prove a valuable consideration (i). And iu a late case, where the question was, whether a settlement had been gained by the purchase of an estate witlun the statute 9 G. i. c. 7. s. 5., parol evidence was adjudged to be admissible to shew, that the parties, after having agreed upon twenty-eight pounds as the purchase money, (which was the consideration expressed in the deed of conveyance,) made a subsequent unwritten agreement before the execution of the deed, that the consideration should be thirty pounds, and that the latter sum was actually paid (2). Here the object of the proposed evidence was not to contradict the indenture, but to ascertain an independent collateral fact, namely, whether thirty pounds had been bona fide paid as a consideration for the purchase of the estate, upon which fact the settlement would depend.

The authorities, which have been mentioned, appear to establish the rule, that, although a consideration is expressed, some other additional consideration may be shewn, not inconsistent with the former. In one case, indeed, namely, where a deed has been impeached for fraud, the party charged will not be allowed to prove any other consideration, in support of the instrument. Thus, where a bill was filed to set aside as fraudulent a conveyance, expressed to be made in consideration of an annuity, and on the part of the defendants it was objected, that the grantor

(1) Peacock v. Monk, i Ves. iz8. cited per Cur. in Rich v. J1ckson,6 Ves.

(2) R .v, Scimmonden, 3 T. R. 474., jun. 33 7, a

Of of the estate Lad often declared, " he would rather that his kins man, one of the defendants, should have the estate in consideration of this annuity than any other person for a more valuable consideration, and that he was willing to give the premises to his kinsman;" the Master of the Rolls, after stating that the deed and the answer had put the defence on another ground, declared, that it would be of mischievous consequence and liable to the danger of perjury, which the statute of frauds intended to prevent, to suffer parol evidence to prove blood and kindred to have been the consideration of this conveyance. (i)

The general rule then is, that a party to a deed will be precluded from shewing a condition or consideration contrary to what is expressed in the deed. An exception, however, is always to be made, where the consideration has been illegal, as for simony, usury, compounding of felony, &c. (2); thus, in an action of debt upon a bond, the defendant may plead, that the bond was given for an usurious consideration, though a different and a legal consideration may be recited. And when fraud is imputed, the party, which complains of the fraud, may prove any consideration, however contrary to the averment in the deed, to shew the fraudulent nature of the transaction (3). Thus, where the considerations mentioned in the deed were ten thousand pounds and natural love and affection, the lords commissioners of the great seal directed an issue, to try whether natural love and affection formed any part of the consideration, the estates which were conveyed by the deed being worth thirty thousand pounds, On an appeal this was confirmed; and the jury, on the trial of this issue, finding that natural love and affection constituted no part of the consideration, the deed was afterwards set aside by the Court of Chancery (4). So, when the question is, whether a

(1) Clarkson v. Hanway, 1 P. Wms. (3) Bull. N. P. 17J. 103. 1 Schoal. k Lef. 501. (4) FUmer v. Gott, 4 Bio. Pail . C.

(a) Buckler v. Millerd, 7 Ventr. Sja}., ad edit. 107, Collins v. Blaniero, a Wils. 347.

person

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