Woods v. Wallace

• Decision Date: 01 October 1853
• Citation: 22 Pa. 171
• Parties: Woods versus Wallace.
• Court: Pennsylvania Supreme Court

22 Pa. 171

Woods versus Wallace.

Supreme Court of Pennsylvania.

ERROR to the Court of Common Pleas of Beaver county.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Fetterman, with whom was Roberts, for plaintiff in error.—It was not alleged on the offer that there had been either fraud or mistake, and they are the only exceptions to the rule that parol evidence is not admissible to contradict, alter, add to, or diminish a written instrument. The note on its face is absolute, and the testimony was offered to change it into a conditional one. The rule of excluding oral testimony has been applied generally "to simple contracts in writing, and with the same exceptions as to specialties and contracts under seal:" 1 Greenleaf, sec. 276. That the evidence was inadmissible further reference was made to 1 Greenleaf, sec. 275-7; 1 Dallas 426; Id. 340; 3 Ser. & R. 607; 10 Id. 339; 2 Watts 187; 4 W. & Ser. 472; 1 Barr 454; 4 Id. 493; 2 Watts 89; 7 Ser. & R. 115.

The instrument contained words of present conveyance subject to the right of redemption within a specified time, and not an assurance that the lot should be conveyed to the plaintiff at some future time. If a mortgage, it would always remain so: 6 Watts 408, HUSTON, J. The offer was to show a conditional sale, for which purpose the evidence was not admissible; but if admitted, the Court should have charged the jury that it should not have that effect: 3 Watts 197, Colwell v. Woods. A conveyance absolute on its face may be shown to be a mortgage; but a mortgage cannot be shown to be a conditional sale by the same means: 6 Watts 126, Kunkle v. Wolfersberger.

That the instrument was not under seal, does not make it less a mortgage. Under the Act of 1772, for the prevention of frauds and perjuries, a writing, not under seal, signed by the parties, showing a contract for the purpose, is sufficient to pass an interest in land: 5 Watts 528, Colt v. Selden. The word parole in that act means not in writing: 3 Pa. Rep. 240.

It was said that any agreement of and concerning lands, although not under seal, may be recorded: 4 Rawle 440, Heilman v. Heilman: 3 W. & Ser. 54; Id. 334.

Cunningham, for defendant in error.—It was contended that the testimony was admissible to show the transaction between the parties: 10 Ser. & R. 292, TILGHMAN, J., in Miller v. Henderson; 16 Id. 424; 6 W. & Ser. 516; 1 Id. 464; 5 Id. 363; 14 Id. 326; 1 W. & Ser. 324; 3 Id. 389; 9 Id. 484.

It was further contended that the instrument in question was not a mortgage neither in form nor by the intention of the parties; that a mortgage must be under seal; that a sci. fa. could not be issued on the one in question, because it is not a deed. It was said that all contracts are by specialty or parol — that there is no third class of contracts in writing: 7 T. R. 350; 3 Pa. Rep. 414. It was said that therefore there is no such thing as a parol mortgage of lands: 3 Pa. R. 240; 3 Barr 233.

It was said that in this case there was an attempt to use the instrument for a different purpose than that for which it was originally designed.

2. If the written instrument is not to be understood without reference to facts dehors the writing, the jury may be allowed to judge of the whole: 12 Ser. & R. 131; 14 Ser. & R. 311; 11 Id. 280; 5 Binn. 499.

The opinion of the Court was delivered by LEWIS, J.

Notwithstanding the numerous exceptions which have been recognised by the Courts, the rule is not denied that where the parties have deliberately put their engagement into writing, parol evidence is inadmissible to contradict or vary the written instrument. It is not because a seal is put to the contract that it shall not be explained away, varied, or rendered ineffectual, but because the writing itself is the best possible evidence of the meaning of the parties: 1 Greenl. Ev. sec. 275-6. And the rule, therefore, applies as well to simple contracts in writing as to instruments under seal: Id. A seal is not necessary in a contract for the sale of land. It is sufficient, and is within the protection of the rule, if it be "in writing and signed by the parties:" 5 Watts 525-8. If an interest in land may pass by writing, not under seal, there is no reason why an encumbrance upon it may not be created by a similar instrument. We have no doubt that a valid mortgage may be created by a written instrument not under seal. We are not now to decide any question in regard to the remedy upon such an instrument, or the effect of recording it. Between the present parties no such questions can arise in this action.

In cases of fraud, or mistake of material facts, where it would be unconscientious to enforce the agreement according to its written terms, or where the parties mistook the meaning of any particular words, or to decipher words, or explain their technical or local meaning, or where extraneous facts are necessary to a proper understanding of the contract, or where there is a latent ambiguity, and perhaps in some other cases, parol evidence has been received. Where a grantee fraudulently attempts to convert into an absolute sale that which was intended to be only a security for a debt, the evidence has also been received: Morris v. Nixon, 17 Pet. 109. This last is upon the double ground of fraud and a breach of trust. In Pennsylvania the rule is well settled that a deed, absolute on its face, may be shown, by parol evidence, to have been given as a mortgage. But it seems to be equally well settled, that an instrument of writing, appearing upon its face to be a mortgage, cannot be converted by parol evidence into a conditional sale. In Brown v. Nickle, 6 Barr 391, it is stated by the whole Court that in Colwell v. Woods it was "determined that a conveyance and simultaneous covenant to reconvey on repayment of the purchase-money before a given day, must be construed to be a mortgage, though it appear by parol that the parties did not intend it to be so;" and that in Kerr v. Gilmore, "it was decided that it is not competent to the parties to prove by parol that the defeasance was a subsequent and independent agreement." In Brown v. Nickle, the point was distinctly decided that "the understanding of the parties must be gathered from the instrument, and cannot be gathered from parol proof," so as to convert a written mortgage into a conditional sale. In that case the plaintiff offered evidence that "the parties and scrivener intended a conditional sale, and not a mortgage." The evidence was rejected, and upon error the decision of the Court upon that point was affirmed by this Court: 6 Barr 391. The law looks with such disfavor upon every attempt to convert a mere security for a debt into a conditional sale, that where the instrument is a mortgage, a written stipulation that, "if the money be not paid at the day named, the estate is to be absolute without further deed, and that the instrument is not to be considered in the nature of a mortgage," will be inoperative — it is still a mortgage: Rankin v. Mortimere, 7 Watts 372. In Kunkle v. Wolfersberger, 6 Watts 126, the rule is explicitly stated that "a formal conveyance may certainly be shown to be a mortgage by extrinsic proof, while a formal mortgage may not be shown to be a conditional sale by the same means. In the one case the proof raises an equity consistent with the writing, and in the other would contradict it," "which," adds Chief Justice GIBSON, "seems to be the principle of Woods v. Colwell, 3 Watts 188." Here the rule and the reasons upon which it is founded are stated. In the one case there is an equity to be protected, which is perfectly consistent with...