Simanovich v. Wood

Morton, C. J. This is an action of contract on a covenant against incumbrances in a deed from the defendant to the plaintiff. It is admitted that an unpaid assessment upon the land was an incumbrance within the covenant. Carr v. Dooley, 119 Mass. 294. The defendant offered to prove, by paroi testimony, that, at the time the deed was given, and as a part of the consideration, the plaintiff promised to pay said assessment. This evidence was rightly rejected. It directly varied and contradicted the written contract of the defendant. The covenant is against all incumbrances. The evidence offered was for the purpose of showing an oral agreement that the incumbrance created by the assessment was not within the covenant. While for some purposes it is competent to show what the real consideration of a deed is, a party cannot, under the guise of showing what the consideration is, prove an oral agreement, either antecedent to or contemporaneous with the deed, which will cut down' or vary the stipulations of his written covenant. This would violate the well-settled rule of law, which will not permit a written contract to be varied or controlled by such testimony. Howe v. Walker, 4 Gray, 818. Spurr v. Andrew, 6 Allen, 420. Flynn v. Bourneuf, 148 Mass. 277. Exceptions overruled.