Peck v. Harrison

Waite, J. The first question is, whether parol evidence was admissible, to prove what was said and done, at the time of the sale of the property of the deceased to the appellant, relative to the debt for which it was mortgaged. The evidence, taken in connection with the subsequent payment of that debt to the Bartholomews, went to show, that Peck, in making that payment, was discharging an obligation, which he had assumed upon himself, and not acting in the capacity of a purchaser. Payment may always be proved by parol. Besides, Peck, in order, to sustain his appeal, must show, that he is interested in the estate, and he claims no other interest, than as a pwrehaser of that debt. The release deed from the Bartholomews, conveyed to him no interest in the debt allowed by the commissioners, and their delivering him the note, with the maker’s name erased, of itself, proves no assignment. [122] To support his claim, therefore, parol evidence must be relied upon by him, and, if it is admissible, to prove a purchase, it is equally admissible to disprove it. It is said, that the administrators had no power to sell, in the manner it is claimed they did. But the mortgagees were under no obligation to release their interest in the property mortgaged to them, until paid this full amount of their debt. The administrators, therefore, could make no valid sale, without making some arrangement for such payment, and that might well be accomplished in the manner claimed. Again, it is said, that the contract with Peck was one relating, to the sale of land, and cannot be proved by parol evidence. But the evidence related only to the consideration of the deed, whether the Bartholomew debt constituted a part of it, or not, and the consideration of a deed, after the conveyance has been made, may always be shown, by parol evidence. King et al. v. Woodruff, 23 Conn. R., and cases there cited. Again, it is said, that the evidence was not sufficient to prove payment. If that were so, it would not affect the question, as to its admissibility, which is the only one reserved for our advice. We think, however, if true, it sufficiently shows, that Peck was not a purchaser of the debt, and acquired no title to the dividend, to be declared upon the debts, allowed against the estate. Again; it is said, that the court of probate had no power to make an order, that no dividend should be paid upon any particular debt, allowed by the commissioners. In ordinary eases, this is so; but the rule does not apply to a case like the present. When the claim of the Bartholomews was allowed by the commissioners, it was a just debt against the estate, and one which they were entitled to have allowed them. But the debt had become subsequently paid, out of the property mortgaged to them, as collateral security, and thus, as against the estate, had become extinguished. [123] When the court enquired into this matter, it did not at all interfere with the doings of the commissioners. Their decision was right, and the enquiry by the court, related only to matters subsequent. To allow a dividend to be paid upon a debt, after it had been extinguished, out of the assets of the estate, would be palpably unjust. Suppose the administrators had paid the debt, for the purpose of enabling them the better to sell the real estate, mortgaged for its security; could it be claimed, for a moment, that the Bartholomews would also be entitled to a dividend'? It was clearly the duty of the court of probate, in declaring a dividend, to enquire and ascertain what debts had been paid, subsequently to the report of the commissioners, and allow dividends, only upon such debts as remained unsatisfied. We are, therefore, of opinion that there is no error in the doings of the court of probate, and so advise the superior court. In this opinion the other judges concurred. Decree of probate affirmed.