Parlin v. Small
| Decision Date | 07 June 1878 |
| Citation | 68 Me. 289 |
| Parties | ALVAH PARLIN et al. v. LEVI SMALL. |
| Court | Maine Supreme Court |
ON MOTION.
CASE for deceit in the sale of a farm.
The declaration states in substance that, July 6, 1875, the defendant sold the plaintiffs his farm in Bowdoinham for $3,100; that before the sale he took them over it and showed them the boundaries, representing it as a rectangle, when in fact an eight acre wood lot of that shape had been sold from the northwest corner to one Robert Small; that he pointed out the northwest corner and the north and west boundaries of the wood lot as a corner and a part of the north and west bounds of his farm; that he told the plaintiffs they could have the wood already cut and piled on the Robert Small wood lot; that he pointed out the land from which it was cut, saying it was nice land and could be cleared at small expense.
The plaintiffs, at the trial, testified to the truth of the allegations. The defendant testified to the contrary, and that the deed was carefully read to them by Mr. Hall before signing, which described the farm in such a way as to show that this eight acre rectangle was excluded from its bounds.
The verdict was for the plaintiffs for $271.41; and the defendant moved to set it aside as against law, evidence and the charge of the presiding justice.
W. T Hall, for the defendant.
J W. Spaulding, for the plaintiffs.
The claim set up by the plaintiffs was, that, in purchasing a farm, they were defrauded by the defendant conveying a less amount of land than was bargained and paid for by them when they took their deed. The plaintiffs getting the verdict, the defendant moves to set it aside. The plaintiffs did not rescind the bargain, but seek to maintain the deed with a parol variation that will make it as good as it would have been but for the alleged fraud, claiming damages for the deceit imposed upon them. They undertake to establish the alleged fraud entirely by their own testimony.
Under these circumstances, what weight shall the oral testimony of parties to a suit have, to relieve themselves from the presumption of correctness that ordinarily attaches to a written instrument of such solemn and important nature as a deed? No doubt, oral evidence from parties alone may be sufficient to establish a fraud that will upset a deed. But what shall the quantum and quality of it be?
In Wharton's Ev. § 932, it is said: " The evidence of fraud, in order to vacate a solemnly executed instrument must be, it need scarcely be added, clear and strong; and this rule is the more important since the passage of the statute enabling parties to testify in their own cases." In a note to the section cited, the author quotes from a Pennsylvania case as follows: ...
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Horner v. Flynn
...is said there is requirement 'the evidence of the mistake was plenary, and left no doubt in the mind of its existence.' In Parlin v. Small, 68 Me. 289, 290 (1878), an action in law based on claimed fraud tried before a jury, the Court 'They undertake to establish the alleged fraud entirely ......
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Petit v. Key Bank of Maine, 7891
...The equitable standard of proof, however, was in fact a modified preponderance of the evidence standard. See, e.g., Parlin v. Small, 68 Me. 289, 290-291 (1878) ("A deed seen and read as this was is a wall of evidence against oral assaults, to begin with. It should not be battered down for a......
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Tourtelotte v. Brown
...prove in support thereof slight circumstances of suspicion only. To be of any avail, it must be clearly proved." It was said in Parlin v. Small, 68 Me. 289: "The of fraud, in order to vacate an executed instrument, must be clear, strong, satisfactory, and convincing." See, also, Lynn v. Rai......