Drum v. Lessee of Simpson

Tilghman C. J. After stating the facts, delivered his opinion as follows. -The first point for our consideration is, whether the copy of fhe bond offered by the plaintiff was evidence. If the original bond would have been evidence, the copy was so, because the original was traced 'to the hands of the defendant who had notice to produce it. It is said indeed that the original would not have been evidence, because it was cancelled; but that is no reason why it should not go in evidence, because it might be a question how it came to be cancelled. Possibly Drum got hold' of it, and cancelled it without authority; and if so, it would have the same force as if uncancelled. This was a matter for the consideration of the jury. Although the legal title of the property in dispute was in the lessor of the plaintiff, yet both the children of Selin and the defendant Drum, thought it necessary to go into the equity of the case, and both claimed an equitable interest in the premises. It was therefore material to shew that Drum had agreed to secure this lot to Mrs. Selin’s children by her first husband. On this point I can see nor difficulty. The Court of Common Pleas were clearly right in their opinion. The next exception was founded on evidence offered by the defendants and rejected by the Court. The circumstance of Simpson’s being a trustee and lessor of the plaintiff, was not sufficient for the rejection of his testimony. It is said by lord Hardwicke in Fotherby v. Tate, 3 Atk. 604, that a trustee, though he has the legal estate, is xonsidered as having no interest, and is examined by order of the Court of Chancery every day. We have acted uniformly on this principle in our courts of law. The name of the trustee is used by the cestui que trust, who is liable for the costs of suit, and is in fact the only person interested., _ But other objections are made to Simpson’s testimony. It is said, that a writing is not to be destroyed or altered by parol testimony, and that the declarations of Snyder, made after he had executed the deed, ought not to be received. If these declarations had been made after the deed had taken [482] complete effect, I think they would not have been evidence* But this is a very special case. At the time that Snyder is supposed to have made the declarations to Simpson, no consent had been given by Simpson to accept the trust, and it does not appear that without these declarations he would have consented to accept it. The deed therefore was not complete. A bran cannot be compelled to accept a trust against his will. This conversation therefore between Snyder and Simpson, is substantially the same as if it had happened just before the execution of the deed; and it has been long settled in this Court, that parol evidence may be received to prove what passed before and at the time of the execution of the deed, if the party offering the evidence alleges fraud or mistake in the transaction. I refer particularly to the case of Thomson v. White, and the authorities there cited, 4 Dall. 426. In another point of view likewise the evidence was-admissible. The deed from George Glass to Simon Snyder is a conveyance of the legal estate, in consideration of twenty dollars, without mention of any trust; neither does it appear by any positive evidence, that there was a secret trust attending this deed. Then the heirs of Selin claiming under Snyder, would be affected by his declarations made before his conveyance to Simpson. But for the reasons I have given, Snyder’s declarations are to be considered as having been made before the execution of the deed. They are therefore evidence. The case of Scroggs v. Scroggs, Ambler 272, bears a strong resemblance to the present. Power was given to Scroggs to make an appointment in favour of such of his children as he pleased, with the consent of two trustees. He prevailed on the survivor of these trustees to join in a deed, making an appointment in favour of his youngest child, through false suggestions, injurious to the character of the eldest. The trustee -was admitted as á witness to give parol evidence of this misrepresentation, and the appointment was set aside. Now the evidence offered by the defendant, tended to the proof of a misrepresentation, in consequence of which Simpson was induced to accept the trust. It appears to me therefore that it ought to have been received. Upon the whole I am of opinion, that the decision of the Court of Common Pleas was right on the first exception, but wrong on the second. The [483] judgment must therefore be reversed, and a venire facias dé novo awarded. Yeates J. was sick during the argument, and gave no opinion. Brackenridge J. concurred with the Chief Justice. Judgment reversed.