Baum v. Lynn

• Decision Date: 08 April 1895
• Citation: 18 So. 428,72 Miss. 932
• Court: Mississippi Supreme Court
• Parties: ELLEN BAUM, EXECUTRIX, v. MARY G. D. LYNN

18 So. 428

72 Miss. 932

ELLEN BAUM, EXECUTRIX, v. MARY G. D. LYNN

Supreme Court of Mississippi

April 8, 1895

FROM the chancery court of Warren county, HON. CLAUDE PINTARD Chancellor.

The facts are stated in the opinion.

Affirmed.

M Marshall, for appellant.

The recital of the consideration in the deed is always open to parol proof. 17 Am. & Eng. Enc. L., 438. Besides, Jno. A Klein was nora party to the conveyance, and was at liberty to show its true consideration.

L. W Magruder, for appellee.

Parol testimony cannot be admitted if the statement as to the consideration, from its terms and context, manifestly embraces, or is intended to embrace, the whole agreement; or, if it forms a part of the contract, it cannot be varied. In this case, the consideration is a release of a pre-existing debt. It is like a conveyance by her of her property, and it is apparent, from the deed, what debt is released. The distinction is clearly stated in Cooke v. Blackbourn, 58 Miss. 537. See, also, 1 Greenl. Ev., chapter 15; 16 Wend. (N. Y.), 473.

Argued orally by L. W. Magruder, for appellee.

OPINION

COOPER, C. J.

In May, 1873, John A. Klein was appointed guardian to the appellee, by the chancery court of Warren county, and gave bond as guardian in the penalty of two thousand dollars, with George M. Klein and J. F. Baum, appellant's testator, as sureties. In May, 1874, the appellee became entitled to receive, in distribution from the estate of a relative, another considerable sum of money, and the chancellor required the guardian to execute an additional bond in the penalty of $ 6,100, which he did, with the said George M. Klein and one D. W. Floweree, now deceased, as sureties. The guardian, John A. Klein, died without having made a final account as guardian, and the appellee exhibited her bill in the chancery court of Warren county against the executrix of the guardian and against George M. Klein, the surviving surety, and the personal representatives of the deceased sureties. The prayer is, that the executrix of the guardian be required to render his final account as guardian, and that a decree be rendered against her therefor, and that decrees be made against George M. Klein, the surviving surety, and against the representatives of the deceased sureties, according to their liabilities. Upon final hearing the court found the guardian to be indebted to his ward in the sum of $ 6,247.80, for which a decree was entered against his representative, and decrees were made against George M. Klein and Ellen Baum, executrix of J. F. Baum, for $ 2,000, the penalty of the bond on which they were sureties, and against George M. Klein and L. M. Lowenberg, administrator of the estate of D. W. Floweree, for $ 6,100, the penalty of the bond on which they were sureties. From this decree Mrs. Baum alone appeals and assigns error.

The objection most strenuously urged to the decree rests upon the following facts proved, or offered to be proved, by appellant: The guardian had loaned a part of his ward's money to Mrs. Mary Irving. In June, 1884, the guardian being then dead and his estate hopelessly insolvent, the appellee who then resided in the state of Texas, came to this state to look after her estate. On the sixteenth of June, Mrs. Irving made to her a conveyance in the following language: "This indenture, made and entered into this the sixteenth day of June, 1884, by and between Mary Irving, of the city of Vicksburg, county of Warren and state of Mississippi, party of the first part, and Mary Grace Lynn, of the state of Texas, party of the second part, witnesseth: that, whereas, John A. Klein, late of said city of Vicksburg, did, on or about the fourteenth day of February, 1874, loan the said Mary Irving certain moneys, then in his hands as guardian of the said Mary Grace Lynn (then Mary Grace Devine); and, whereas, the said Mary Irving now desires to settle in fall any balance that may be due by her: Now, therefore, for and in consideration of the premises and the further consideration of the full acquittance, discharge and release of the said Mary Irving from any and all liability to the said John A. Klein as guardian, or to the said Mary Grace Lynn for and on account of said loans, and the further consideration of ten dollars in hand paid, the receipt of which is hereby acknowledged, the said party of the first part does hereby convey and warrant to the party of the second part, her heirs and assigns, in fee simple, the following described real estate in the said city of Vicksburg," describing the property and concluding with the usual habendum. The appellant took the deposition of Mr. Irving, who was the husband of the grantor, she being now dead, and that of George M. Klein and of Mr. Smith, the attorney who prepared the conveyance, all of whom testified that the conveyance was made by Mrs. Irving and accepted by Mrs: Lynn in full satisfaction and settlement not only of the debt due by Mrs. Irving to Klein as guardian, but also in discharge and settlement of all liability on the part of the guardian to his ward, which liability Mrs. Lynn agreed to discharge and release as a part of the consideration for the conveyance. The complainant moved to suppress these depositions, and objected to them, when offered in evidence, upon the ground that it was incompetent to vary by parol proof the written contract of the parties as shown by the deed. It does not appear that the chancellor made any order on the motion to suppress or ruled upon the objection interposed to the evidence when offered. As the note of evidence, however, shows that these depositions were read on the hearing, we assume that the chancellor held them to be competent. In opposition to this evidence, the complainant introduced her own testimony and that of her husband, by which it is denied that the conveyance was accepted in discharge of any other obligation than that of Mrs. Irving and that of the guardian for the amount loaned to her. The defendant, in turn, objected to the testimony of the complainant, on the ground that she was not a competent witness in a suit against the estate of a deceased person to establish her claim resting upon a transaction occurring in his lifetime. As the court below did not rule upon these objections, we cannot know whether it disregarded all the oral testimony, or, considering it, thought the fact not proved that Mrs. Lynn agreed to accept the conveyance in discharge and satisfaction of her entire demand against her guardian. The complainant is, however, entitled to the decree, if upon either of these reasons it is correct, The text-books and decisions abound in confused and confusing writing upon the subject of the admissibility of parol evidence introduced for the purpose of showing the consideration of written contracts, or of proving what are called collateral contracts--i, e., contracts not evidenced by the written one, but which constitute the consideration upon which the written one in turn rests, or which are separate and disconnected from the written one, not covered by nor inconsistent with its terms. Mr. Stephen, in his admirable digest of the law of evidence, thus formulates the rule and its limitations: "When any judgment of any court, or any other judicial or official proceeding, or any contract, grant or any other disposition of property, has been reduced to the form of a document, or series of documents, no evidence may be given of such judgment or proceeding, or of the terms of such contract, grant or other disposition of property, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence; provided, that any of the following matters may be proved: (1) Fraud, intimidation, illegality, want of due execution, want of capacity in any of the contracting parties, the fact that it is wrongly dated, want or failure of consideration or mistake in fact or law, or any other matter which, if proven, would produce any effect upon the validity of any document, or any part of it, or which would entitle any person to any judgment, decree or order relating thereto. (2) The existence of any separate oral agreement as to any matter on which a document is silent and which is not inconsistent with its terms, if, from the circumstances of the case the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them," etc. It is evident that the proffered testimony for the defendant is competent, if at all, either (1) because it goes only to prove what was the real consideration of the conveyance, and, therefore, contradicts not the contract, but a mere fact recited or admitted in the writing, or (2) because it tended to prove a separate oral agreement within the limitation expressed in clause of the proviso as quoted from Mr. Stephen. In Gully v. Grubbs, 24 Ky. 387, 1 J.J. Marsh. 387, Judge Robertson, in an admirable and concise manner, states the true principle upon which the rule permitting oral evidence to be introduced to show the true consideration of a deed in opposition to that recited, as well as the limitation of the rule. In Devlin on Deeds, vol. 2, § 830, this opinion is given at length as...