Chetwood v. Brittan

The Chancellor. The answer having been filed, T am now moved to dissolve the injunction heretofore issued in this cause. Upon this motion the whole merits of the case, as they appear upon bill and answer, have been discussed. The defendant claims to succeed in his application upon the case made by the bill itself, and if not, then upon the answer, as being a denial of the complainant’s equity. The bill presents this state of facts. That in May, 1836, Aaron L. Middlebrook entered into an agreement with the defendant for the purchase of lands at Eiizabelh-Town, and in which purchase the complainant became interested with him. Before any deed was given, a company was formed to take the land in shares, and the complainant, not wishing to be one of the company, parted with all his interest., but never received any thing and has no expectation of ever receiving any thing for it. The complainant, under these circumstances, (his interest in the premises being gone,) was called upon by Middlebrook and Jonathan D. Williamson, (who had made up the company to take the land as before stated,) and requested to take a deed for the properly in his own name as a stake-holder or trustee for those interested in it, and they slated that the parties in interest desired him to do so. The complainant consented to this course, and the defendant accordingly called with a deed executed to him for the property, and at the same time produced to the complainant a bond and mortgage on the property, to be executed by him, for a part of the purchase money. The complainant at first objected to signing the bond, for the reason that he did not wish to bind himself for other men’s debts, but did so upon the defendant’s informing him “ that he need be under no apprehension of trouble or difficulty as to liability, as he would take the land or look to the land at any time for the balance of the consideration money, and that he was to receive the proceeds of the sales as fast as lots were sold, from the purchasers/’ There arc — 448 — various other allegations in the bill, but this is the material onei upon which the injunction was granted. This was a transaction during the time when speculation in real estate was every clay’s business, and for almost every man in society, in some pails of the country, and it was no doubt believed that, in no possible event, could the complainant, be subjected to any loss by signing the bond. But things turned out. otherwise, and after selling the propel ty covered by the mortgage, there remains a deficiency due on tlie bond of rising three thousand dollars. For this money a suit has been instituted at law by the defendant against, the complainant on his bond, and upon the above slate of facts an injunction was issued restraining the defendant, from proceeding therein until (lie further order of this court. When this bill was first presented to me, I had some doubts whether the complainant would be tdlowed to make ibis proof even if in his power,, (should the answer deny the charge.) as being a violation of that sound rule of evidence which forbids a contradiction of a written agreement or deed by parol. The argument on this point has confirmed my first impressions, that to allow this evidence would endanger the security which must belong to a solemn instalment and render our rights and property insecure. The complainant executes under his hand and seal a bond to the defendant, and thereby promises at a certain day to pay him so much money. The evidence to be offered is, that at that very time, (not at a later day and under other circumstances.) (he complainant w-as not to pay the money on the bond, but the defendant agreed to look to the land alone. Does not this come in direct conflict with the writing itself? If the bond was not to be paid, why was it given ? The lien by way of mortgage would have been as complete without a bond as with it. It is said, indeed, that the complainant does not deny the execution of the bond, or any part of its contents, and that the evidence only goes to show' the circumstances under which it was given. If solemn instruments might beso easily obviated by parol testimony of what.took place at the time of their execution, and that too In direct opposition to the terms of the wiiling itself, I confess that my faith iu their — 449 — value would be greatly shaken. Whatever the parties reduce to writing must be considered as embodying their understanding at that time. If by fraud, or mistake, or accident, the paper should not contain the true agreement or the whole agreement, then, undoubtedly, it may be supplied by parol. In this case there is no allegation of fraud; on the contrary, it is admitted that the bond was executed according to the understanding of the parties. There was no deception practiced on the complainant, nothing omitted in it that should have been inserted, or inserted that was not so intended ; but the whole insistment is, that although the complainant did sign and seal his bond for so much money, yet at that very time the agreement was that he was not to pay it. This is letting parol proof overcome the writing and the seal of the party, and striking at the foundation of the security in instruments of this character. The remark of chancellor Kent in 2 Johns. Ch. 557, is very true, when he says, “ There is nothing more dangerous than to impair the force and effect of solemn contracts in writing, by careless, idle, and perhaps unmeaning conversations.” And it is added, “ as far as such testimony is in contradiction to the language of the note itself, it is utterly inadmissible.” The cases cited from 1 Brown's Chan. 92, and 2 Brown's Chan. 219, are very much alike, and bear strongly on this question. Upon settling the terms of an annuity it was agreed that it should be redeemable, but fearing that a clause for redemption, if inserted, might affect the transaction as usurious, it was omitted in the writing. Upon a bill filed to redeem, the evidence of the agreement to redeem was rejected, as being in opposition to the written contract. The lord chancellor said, If it was agreed not to insert the clause of redemption, evidence to that purport could not be given, but if it was left out by fraud, it might. In 4 Brown's Chan. 514, the case was, that a memorandum had been drawn up for a lease at a prescribed rent, omitting any thing about taxes, and when the lease was drawn the words “ clear of all taxes” were inserted. The court would not allow the lease to be corrected by the memorandum. The — 450 — lord chancellor, in his opinion, says, “ It is quite impossible ifeadmit the rule of law to be broken in upon, and that requires-that nothing should be added to the written agreement unless in-eases where there is a clear subsequent and independent agreement varying t-he former, but not where it is of matter passing at the same time with the written agreement.” The same principle is recognized in I John. Chan. 282. In 3 Atkyns, 389,-evidence was admitted to show an omission in a lease, but that was- on a bill for a specific performance, and the evidence was offered to rebut am equity. In such a case great latitude is allowed, and-the court- will look into evidence of this character against the relief sought. It appeared further, that the complainant had drawn the lease himself, and it was an omission on his part. So in 2 Vesey, sen. 299, evidence was read to show that by a subsequent- agreement an additional sum was added for rent; but it will be observed this was a- subsequent and additional agreement' arising upon a- new state of facts, from the necessity of palling ' down the house and erecting a new one, instead of repairing the' old, as was contemplated when the lease was drawn. The caseip 2 Vesey, sen. 376, referring to this case, expressly says, theevidence- was- admitted as coming in on a new agreement, and the case is therefore- an authority, as I think, for- the principle as-I have stated it.- My present impression, from looking into the oases and the- principle upon which the rule is founded,-is, that-the complainant cannot read evidence of what took place at the time of executing his bond, to sustain the charge in the bill upon-which-the-injnnctioB'is granted. But it is only upon the rale of evidence that- the difficulty exists, and the danger of defeating by parol the solemn deed of a party; for suppose, upon the bill being filed the-defendant had admitted the facts to be as the complainant has:stated them, could not-this court have given the relief sought? If so, then the injunction was properly issued until answer. This view may possibly have induced the learned counsel to withdraw the demurrer which was originally filed, and substitute an answer in its stead. Although counsel have argued the question as to the admissi.’ — 451 — 'bility of this evidence on the present motion, which seemed to call for the expression of some opinion from me upon the subject, and perhaps was so designed, yet I deem it premature to conclude the party by any decision until the evidence is offered ; nor, indeed, can I undertake to say what kind of proof the complainant may have it in his power to offer. I throw out these views upon this part of the case therefore now, not intending to decide the point so as to preclude the complainant, if he shall think proper so to do, from raising the question on the final hearing, nor from taking the testimony with that view7, but as due to the importance of the case, and a desire of placing the difficulties, as they present, themselves to me, fairly before the complainant. The point is not without its embarrassments, and I should be very willing, if the case goes farther, to investigate it more fully. The defendant’s answer is next to be considered. I have carefully examined it, with the aid of the ingenious criticisms placed upon it by the counsel of the complainant, whose skill on this .subject I have often remarked, and I can still view it in no other light than as a broad denial of every main charge in the bill. The substance of the answer is, that the defendant agreed to sell the land to Middlebrook, and for a part of the purchase money was to have a bond secured by mortgage on the same premises. That he knew nothing of the arrangements between Middlebrook and tlie complainant, by which the latter w7as to take the deed and give the bond and mortgage, but he agreed to the substitution of the complainant at the request of Middlebrook, and from ■the knowledge that his security would thereby be increased. The answer denies that the defendant did at the time of the execution of the papers, or at any other time, agree to take back the land, or look to it for the balance of the consideration money, nor has the defendant any recollection or belief that the complainant in his presence objected to giving the bond, but after the papers were executed, and at the time they were exchanged, the complainant said to him, that he hoped he would look to the land first, before he called on him for the bond; to which the defendant assented, and has accordingly exhausted his remedy — 452 — first on the mortgage before prosecuting this bond. That this conversation was not considered as in any way affecting the bargain, but as a mere friendly act to the complainant. This is placing the subject in a new light, and' takes off the whole point and force of the complainant’s allegation. I do not know that a stronger case than this to exhibit the propriety of the rule confining parties to .their written contracts, could be made. It proves the fallacy of human memory, and how liable men are to place a construction on every thing that passes favorable to their own interests ami wishes. The elevated character of these parties forbids the idea that either would evade the truth for ten times the value of the property in dispute, and yet how widely they differ. All that can be said is, that the equity of the bill is fairly and fully met by the answer. Under these circumstances, shall this injunction be further continued ? This is a question which must always rest in discretion, and yet that discretion should not be arbitrary, but yield to well established rules. The equity may be answered and yet the court will continue the injunction to the hearing, and especially so if a dissolution would work a greater injury than a continuance of the process. In view of all the circumstances as connected with this case, after thus far unfolding my present view's upon it, I consider it my duty not to dissolve the injunction at this lime, but to continue it to the hearing. The main question discussed on the argument does not really arise until the evidence is taken in the cause, and it would be in a measure prejudging a party thus to anticipate the .complainant on this part of the case. The complainant has further sought his remedy in this court, and if he 'fail here nlust fail every where; and if the injunction should be dissolved under the prayer as it now stands in the bill, and the defendant should go on with his suit at law and obtain a judgment, though a decree should finally pass for the complainant, it would come too late. I incline, therefore, to give the complainant a fair and full hearing on the merits of his cause, and Opt to embarrass and defeat the object of his suit by a decision — 453 — against him on this preliminary question. The parties are responsible, and no danger is to be apprehended by the short delay necessary for taking the evidence. The injunction, if continued, must however be upon terms. The complainant must stipulate to suspend further proceedings upon his suit against the defendant on his note, until this cause is settled. That suit, by the pleadings in it, is connected with the bond referred to in this case, and common justice requires that the complainant shall not stop the defendant from proceeding in his suit and yet go on in his own. The injunction continued to the hearing, and the costs to abide the final decision.