Chew v. Gillespie

The opinion of the court was delivered, January 7th 1868, by Read, J. John Wilkins, Jr., being the owner of the Metzgar warrant, on the 6th April 1796 entered into an agreement with Daniel Martin, by which Daniel agreed, on or before the 10th April instant, to settle and improve the tract covered by the warrant on Big Connoquenessing creek, and continue said settlement for five years, build a house fit for the habitation of man, &c. Wilkins, in consideration, covenanted to convey to said Martin 200 acres of said land to be divided as fairly as possible, according to quality, reserving, nevertheless, to the said Martin all the improvements he makes on said lands, and, at the determination of the aforesaid period of five years, give a deed for the same free from all encumbrances. Martin fulfilled his agreement, and in 1806 James Robinson, as agent of John Wilkins, brought ■Samuel Rippey as surveyor, and run off Daniel Martin’s share, in the presence of a number of the settlers on adjoining lands. The line thus run gave Martin 70 odd acres, more than the half in quantity, which Wilkins agreed to, because he got the rich bottom-land- which he wanted, which made his half equal “ according to quality.” The evidence leaves no doubt that this division was made in conformity to the original agreement, and each party became the separate owner of the part -thus set off to him. This agreement and division were ratified and confirmed by the 1st section of the Act of 20th March 1811, 5 Sm. Laws 207, and the title vested in the said Wilkins and Martin according to the [314] agreement. When, therefore, Benjamin Chew succeeded to the title of Wilkins, it gave him no title to Martin’s land, to whom, when called upon, he was hound to convey the dry legal title vested in him by the patent from the Commonwealth. On the 19th March 1836, the children and heirs of Daniel Martin by deed conveyed to Daniel Stamm 200 acres. The language of the deed, unexplained, appeared to be a conveyance of the whole of Martin’s share, although it was certain Stamm got his 200 acres, leaving the Martins in possession of 72 acres, within the line run off and settled in 1806, and after the commencement of this suit, Stamm’s representatives released and conveyed the same to Martin’s heirs. Between them there was no mistake, for both recognised the fact that the 72 acres were never conveyed, nor intended to be conveyed, by the deed of the 19th March 1836. On the trial, the plaintiff produced this deed to show that the whole of Martin’s title and land had been conveyed to Stamm, and to introduce another deed from the executors of Benjamin Chew to Stamm, executed twenty-eight days after Stamm’s release to Mai'tin’s heirs. The question, therefore, became a material one, Were the 72 acres included in the deed from Martin’s heirs to Stamm ? and parol evidence was offered to prove what took place at the execution of it, showing the real intention of the parties, and that by a clear mistake of the scrivener at the very least, he entirely omitted so to describe the premises as to leave the 72 acres unconveyed and the property of Martin’s heirs, which mistake was afterwards corrected by Stamm’s representatives. The court properly admitted the evidence, which was clear and distinct. In Chalfant v. Williams, 11 Casey 215, the late Chief Justice said: “ If we had held to the rule that is laid down in Starkie’s Evidence, part 4, p. 1009, that parol evidence is inadmissible for the purpose of altering the legal operation of an instrument, we should be obliged to reverse the ruling in this case. But we have got far away from that rule. -We permit a deed absolute on its face to be proved a mortgage ; we receive parol evidence to rebut a presumption or an equity — to supply deficiencies in the written agreement — to explain ambiguities in the subject-matter of writings — to prevent frauds and correct mistakes.” The court wore right in admitting the evidence, and in their answer to the plaintiffs’ points. Judgment affirmed.