Zentmyer v. Mittower

Bell, J. Apart from the parol testimony rejected by the court below, (to be presently considered,) there is nothing in the case to show it was the intention of the parties to carry into the deed of conveyance by Christopher to Daniel Zentmyer, all the covenants contained in the articles of agreement of the 11th September, 1815; but if, upon the ground that, through mistake, the deed was not a full and complete execution of the contract of the original parties, we consent to construe the article and deed as one instrument, it is clear the covenant of Daniel to pay, in a particular way, the purchase-money of $6000, was a personal covenant, involving nothing beyond the personal liability of the covenantor. Unlike what are called in the deed, “the reserves,” which were to continue during the lives of the grantor and his wife Barbara, and in Herbaugh v. Zentmyer, 2 Rawle, 159, ascertained to be in the nature of a rent bound upon the land in the hands of the assignor, by virtue of a real covenant, there is nothing in either instrument to indicate any intention that the purchase-money, properly so called, should constitute an encumbrance on the estate granted to David, or in any way qualify it. On the contrary, the express provision of the deed, that the land conveyed should pass, “ subject to the claims” of the Commonwealth, and other reserves mentioned in'the article, negative the existence of such an intent, upon the maxim expressio unius est exclusio alierius. In this respect the case is stronger against the pretensions of the plaintiff than Hepburn v. Snyder, 3 Barr, 72, where the grantee agreed, by the very terms of the conveyance to him, to take the estate subject to the debts, .encumbrances, charges, and responsibilities of the grantor, which, however, was held to amount to but a personal covenant; and it is unlike Bear v. Whisler, 7 Watts, 144, where the estate was conveyed subject to the conditions and obligations contained in the previous articles of agreement, stipulating inter alia, the payment of purchase-money to certain persons at particular times, which was decided to create an estate on condition. The line of distinction drawn by the parties, between the covenant which stipulated an annual rendition of things, issuing out of the land itself, and that which provided for the payment of a sum in gross, has nothing in it unusual, or that ought to subject it to the challenge of doubt, as inexpressive of their understanding of the premises. It is, in itself, perfectly natural and entirely consistent with the mode usually pursued in this state, in such cases, to charge that which partakes of the nature of rent, upon the land itself, by the terms of the conveyance, while the payment of purchase-money in futuro — 409 — is rested upon the personal ability of the grantee, secured by a pledge of the land in mortgage, or by encumbering it by the lien of1 a judgment. ■ The plaintiff, conceding all that has been said, seeks to avoid it by claiming to reform the articles and deed, considered as one instrument, upon the introduction of parol proof, not that from mistake or fraud any thing was omitted in these instruments, which it was intended to insert, but that, as he avers, the grantor was induced to deliver the conveyance from a misconception of the legal effect of the articles, and perhaps of the deed itself, touching his remedy for enforcing payment of the purchase-money; a misconception originating in the misrepresentation, not of the grantee, but of George Ilarbaugh, one of the present defendants. The court below rejected the evidence offered for this purpose, and whether this was right or wrong is the only question presented by the record, for, if right, the subsequent direction to the jury to find a verdict for the defendant was entirely correct. As an exception to the general rule, parol evidence is, under certain restrictions, admissible to control a written instrument, where either more or less has been expressed than the parties intended, or where one of them, relying upon a misrepresentation of a material fact, by another interested in the transaction, has been induced to do something he otherwise would not have done, and this whether the misrepresentation be wilful or unintentional, if, under the circumstances, it would be unconscionable in the person making it to take advantage of ignorance abused by his own mistake or falsehood. But there are certain conditions essential to the competency of such evidence. Of these, a primary one is, that it must tend to show a misrepresentation, not only in a material fact, but in something in regard to which the one party, of right, places trust and confidence in the other. Ordinarily, it must not be in mere matter of opinion, equally open to both parties for examination, where neither party is presumed to trust the other, though, certainly, even here, under peculiar circumstances of contrivance or abuse of confidence, naturally reposed, equity will relieve; 1 Story’s Eq. 218, § 197. The rule just stated is peculiarly applicable to opinions hazarded as to the effect of legal documents, where the parties stand on an equal footing, for they are not presumed to be misled where each have equal means of information. It follows, that it is not every misrepresentation that will avoid or control a contract, for if it be of such a nature that he to whom it is made has no right to rely upon it, it is his own folly if he act under a deception; and, as it is — 410 — said, courts of equity will not aid one who refuses to exercise his own sense and discretion, where it is incumbent on him to do so; Hunt v. Moore, 2 Barr, 108. Another of these conditions is, that the parol evidence of fraud be of such a nature, as distinctly to establish the fact, that the action of the injured party was simply the result of the mistake or misrepresentation of one who seeks, unfairly, to avail himself of it; Miller v. Henderson, 10 Serg. & Rawle, 290; Haine v. Kalbach, 14 Serg. & Rawle, 159; Clark v. Patridge, 2 Barr, 13. To this effect it should be clear, explicit, and indubitable, leaving the mind free of doubt; for if it be so loose and unsatisfactoryas to lead tono certain conclusion, it ought not to be received to control or modify a writing, and more especially solemn instruments such as those now in question, executed with all the formalities of the law; Stub v. Stub, 3 Barr, 251. As is said by Mr. Justice Rogers, (in Farmers and Drovers’ Bank v. Fordyce, 1 Barr, 457,) we must hold a tight rein on such testimony, otherwise great mischief will result, rendering titles to property very uncertain and doubtful. It is the remark of another learned judge, which recommends itself to our acceptance by its good sense, “that if, under the pretence of reforming an instrument, loose parol declarations are received to substitute another contract in lieu of it, the rights of property would rest on a frail and precarious foundation;” Sergeant, Justice, in Stine v. Sherk, 1 Watts & Serg. 202. .Indeed, I am inclined to think, that to make a misrepresentation or mistake available against the express terms of a. conveyance, it ought to assume the character of contract, as in Flagler v. Pleiss, 3 Rawle, 345; and Tyson v. Passmore, 2 Barr, 122. In the latter case, upon which the plaintiff in error principally relied on the argument, the peculiar feature was, that the purchaser, trusting solely to the representation of the seller as to the supposed efficacy of the warrant of survey, was induced to buy and pay for the whole tract of two hundred and sixty acres, comprised within the lines of the old draft. The contract was distinctly and unequivocally shown by the evidence offered, and that both parties had acted upon it. It was, therefore, justly held a fraud in the vendor, afterwards to acquire, and in violation of his agreement, attempt to hold adversely, the excess above the seventy-five acres, called for by the warrant. Confined within the limits prescribed by these cases, the reception of oral testimony may perhaps be safely indulged, but we must not be seduced by considerations of supposed hardships, to pass beyond them. If we test the parol proof offered in the case at bar by the prin — 411 — ciples I have stated, it will be found the court below was right, beyond question, in rejecting it. It possessed not one of the requisites essential to the validity of such evidence. A short review of the facts will, I think, make this apparent. The Zentmyers, father and sons, had come to the town of Chambershurg for the purpose of completing the transaction, which, two years before, had its inception in articles of agreement, by a conveyance of the land to Daniel. The deed for this purpose seems to have been prepared, signed, sealed, and in the possession of the father, ready for delivery, immediately on the completion of the arrangement before made, respecting the liens then a burden on the land. George, Jacob, and Henry Harbaugh, accompanied the Zentmyers, not for the purpose of supervising the transfer of the land, with which they appear to have had no other connection than as the agents of their father, an encumbrancer, but with the sole view of carrying into effect a previous understanding, by which the old mortgage executed by Christopher, the vendor, was to be exchanged for the judgment-bonds of Daniel, the purchaser. After consulting counsel as to the proper mode of proceeding, the parties, In pursuance, it is to be ■presumed, of the professional advice they had received, proceeded to the county offices, where the business that had brought the Harbaughs to the town was completed by entering satisfaction on the record of the mortgage, and in lieu thereof causing judgments to be entered to secure the payment of Daniel’s bonds to George Harbaugh, who, it appears, was substituted for his father, the mortgagee. These preliminaries being arranged, Daniel asked his father for the deed. -Some hesitancy being manifested by the father, who, as the witness said, looked at George Harbaugh and all around, the latter said, “Yes, you have to give the deed to Daniel; you have the agreement, the deed belongs to Daniel, and you have the agreement to show against the deed;” whereupon the father gave the deed to the son. It is obvious that, in all this, George Harbaugh was merely giving to the principal actors his opinion of what was proper to be done to consummate a precedent arrangement, not as one having an interest in it, for he had in fact none, but as the 'friend of the contracting parties. Up to this time, too, according to the witness’s first statement, not one word Was said indicating that the balance of the purchase-money was to remain a lien on the land. It was not until the attention of the witness was recalled to the subject that he testified Harbaugh said to his father, “ you have your right in the land, and you have your articles of agreement to — 412 — show against the deed.” This is the sole expression upon which the plaintiff is compelled to base his whole case. But what right did Harbaugh speak of ? The deed referred to the article so far as this provided for the privileges reserved, and the annual appropriations of things in kind, to be made out of the land itself, and if Harbaugh was aware of the contents of this deed, it is probable, or at least very possible, he referred to this provision in it. His observation might be rendered, without the slightest violation of the language used, “ the deed refers generally to the reserves mentioned at large in the article, as your right in the land, and you have the article to show against the deed.”' But admitting that Harbaugh might have had reference to the balance of purchase-money, and was so understood, still resting in conjecture as it necessarily does, it is too uncertain to work the important effect claimed for it, and were it less so, in this particular, the answer would be, that, so far as appears, it was the mere expression of opinion upon a legal question by a third person, standing in no peculiar relation of confidence to the parties, not asserted by the grantee, nor clearly shown to have been so properly and exclusively acted upon by the grantor, as to call for the interposition of equity to prevent a fraud. Were it, however, possible to admit the proposed testimony to stand, clear of these objections, it cannot be contended that the estate in the hands of the grantee was liable to be radically affected by the uncalled-for interposition of Harbaugh. So far as appears, the former was silent, nor do I perceive any thing in the circumstances attending this transaction that called upon him expressly to negative the supposed error of an opinion casually expressed, especially when it is recollected that this whole subject had been in the contemplation of the parties for upwards of eighteen months, and that they came prepared finally to execute their agreement. In the Bank v. Fordyce, supra, the mere silence of the assignee was held not to be such an assent to a statement made in his presence, as amounted to a contract, and, it seems to me, the same conclusion is inevitable here. This remark acquires additional weight from the reflection that Daniel may have under stood the speaker to have had special reference to the reservations mentioned in the deed, and, if so, the remark would have called for no answer. If, then, the estate in the hands of the grantee was not bound, can it be said that a prior encumbrancer — for such in truth was Harbaugh’s position — who afterwards became a purchaser to save his debt, is to be affected ? Certain it is that since Kauffelt v. Bower, 7 Serg. & Rawle, 64, an encumbrancer posterior to the — 413 — conveyance would not be subjected to the operation of such a lien for purchase-money, even with notice. Perhaps, however, in a proper case, fully made out, the liabilities of one standing in the position of Harbaugh might be established on the principle that he who occasions a loss to innocent persons, by the misrepresentation of a fact, is bound to make it good. But it is unnecessary to pursue the inquiry further. The decision of this case may be safely rested upon the loose and inconclusive character of the rejected testimony, as being wholly insufficient to transform the defendant, Harbaugh, into a trustee ex malifieio, and it is only on this ground the action can be maintained. As tending rather to mislead than to enlighten the jury, it was properly excluded from their consideration; Stub v. Stub, 3 Barr, 255. It was faintly urged on the argument, that, admitting the testimony of Jacob Zentmyer to have been rightly rejected, yet the plaintiff ought to have been permitted to recover for the non-payment of the annuity or rent, payable to the ancestor during life. But there is no soundness in this notion. The right to receive was personal to Christopher Zentmyer and his wife, and any claim for arrearages survives, if at all, in their personal representatives, to be enforced by personal action, and not to the heirs, to furnish ground for an ejectment. Besides, this point does not appear to have been made in the court below. Judgment affirmed.