M'Kennan v. Doughman

The opinion of the court was delivered by Smith, J. (His Honor here stated the facts of the case.) The exception to this decision, brings before us the question, (and it is the only one in the cause,) whether the parol evidence offered, was admissible on principles heretofore decided and recognized? It is to be remembered the evidence was not presented to prove what actually passed between the parties, at the time of or immediately before the execution and delivery of the bonds and deed; nor to prove any trick, or fraud practiced by the grantor, nor - any mistake by the person who drew the bonds or deed. It was offered on the broad ground, to show, that a few daysbefore the bonds and deed were executed, some parol agreement was made between the parties, by which MlKennan was to patent the land. It does not appear, that any thing was said by the parties on the subject, [419] when the deed and bonds were executed; no article of agreement was then produced; no mistake of the scrivener pretended; no' allegation, that he was misinformed by any of the parties, or that he misunderstood, or disobeyed his instructions: on the contrary, it appears, that the deed Was amended just before the execution, for the purpose of embracing the covenant of general Warranty above stated: this then is the naked case,- in which parol evidence was-admitted, to contradict and control the express covenant of a deed, freely executed and delivered, and as freely accepted; which is contrary to the general rtie, always adhered to in this state, with-very few enumerated exceptions, that-parol evidence, shall not be' admitted to destroy, control, add to; or alter a written instrument: - Here, the deed, altered and amended, at or immediately before the' • execution, was clearly the consummation of all previous bargaining, and contained the final intent and agreement of the parties. These principles long since decided, have often been recognized by this court, particularly in Cozens v. Stevenson, 5 Serg. & Rawle, 421, and in Collam v. Hocker, 1 Rawle, 108. Judgment reversed, and a venire facias de novo awarded--