Ellis v. Higgins

Shepley, C. J., orally.—The evidence offered would reduce an absolute to a conditional deed, to a mere mortgage title. It is not competent to effect such a change by parol testimony. It was also contended that the demandant holds in trust, for the benefit of the tenant. And it is proposed to prove this by parol. But such proof would be in violation of the best settled rules. The tenant then proposed to prove his own fraud, whereby to defeat his own deed. And it is contended that the R. S. chap. 161, sect. 2, has introduced a new principle, and that the deed, being in violation of a penal statute, was therefore void. And the case is likened to agreements made on the Sabbail, which have been declared void. But the counsel does not notice the distinction between executed and executory contracts. [36] If a contract was executed and the property passed, on a Sunday, the sale would be valid. Between parties to fraud the law renders no aid to either. The title, though by a fraudulent deed, passed from the tenant to the demandant. The statute does not declare it to be void. If it had been a contract to convey, it could not have been enforced. It was an actual conveyance. It passed the title without any aid from the courts. As to the claim for betterments, the case shows clearly that the tenant held in submission to the demandant’s title. They cannot be allowed. Defendant defaulted.