18.23. Wesley VS Thomas Harvey vs. Harvey, 2 Chan. Ca. 180. Harris vs. Bishop of Lincoln, 2 P. Wms. 135. Rutland vs. Rutland, Ibid 210. Gillespie vs. Moon, 2 Johns. Ch. Rep. 585. Elliott vs. Osborn, 1 Harr. & M Hen. 146. Gittings vs. Hall, 1 Harr. & Johns. 14. Todd vs. Rivers, 1 Desaus. Ch. Rep. 155. Thomson vs. White, 1 Dall. Rep. 426; and Ross vs. Norvell, 1 Wash. Rep. 14. Boyle, also for the appellees, relied on Coke Litt. 205, (note.) Richards vs. Syms, Barn. Ch. Rep. 90. Powell on Mortg. 187. The King vs. The Inhabitants of Scammonden, 3 T. R. 474. Montacue vs. Maxwell, Prec. in Chan. 526. 1 Stra. 236, S. C. Baker vs. Pritchard, 2 Atk. 389. Lane vs. Dighton, Amb. 409. Exparte Vernon, 2 P. Wms. 549. Boyd vs. M'Lean, 1 Johns. Ch. Saund. on Uses & Trusts, 127, 134. Rob. on Frauds, 161; and Thomson vs. White, 1 Dall. Rep. 424. Rep. 582. Ridout, in reply, cited Stevens vs. Cooper, 1 Johns. Chan. Rep. 429; and 1 Phill. Evid. 448. The opinion of the court was delivered by DORSEY, J. The appellees, John R. Thomas, and Catharine his wife, filed their bill in the court of chancery against Henry Wesley, and others, alleging that Aquila Pumphrey, the former husband of Catharine, the female complainant, being indebted to several persons to the amount of one hundred dollars, on judgments obtained against him on warrants, applied to the defendant, Wesley, to join as a security in superseding the said judgments, and that Wesley agreed to do so on condition that Pumphrey would give him an indemnity. The bill then proceeds to state, that the deed of mortgage exhibited with the bill, was executed to secure Wesley against the payment of the said judgments, and for no other purpose. It is alleged in the bill, that the judgments were discharged by Pumphrey, and that the negroes mentioned in the deed of mortgage remained in the possession of the said Pumphrey, and the complainant, Catharine his administratrix, until three of them were replevied by Wesley. The bill prays that a writ of ne exeat regno may issue against Wesley, and his securities in the replevin bond, and that the deed may be delivered up to be cancelled. The deed exhibited with the bill, is executed by Pumphrey, and in consideration of 8200 conveys to Wesley, and his executors, four negroes, to be defeasanced on the payment of $200, to be paid by the bargainor to the bargainee. The defendant, Wesley, by his answer, denies that the deed was executed as an indemnity as alleged by the complainants, but affirms that it was given for the purpose of securing $200 due from Pumphrey to him. A commission issued, under which evidence was taken by the complainants, proving that Wesley had in various conversations acknowledged that the deed was executed for the purpose stated in the bill, and that nothing was due. to him from Pumphrey. The late chancellor by his decree, ordered that the deed should be cancelled, and from this decree Wesley has appealed; and this court are of opinion, that the decree of the chancellor must be reversed, as parol proof was inadmissible under the pleadings to reform the contract as evidenced by the deed executed by Pumphrey to Wesley. By the rule of the common law, independent of the statute of frauds and perjuries, parol proof is inadmissible to contradict, add to, or vary the terms of a written agreement. This principle is, founded in the wisest policy, it guards the chastity of written contracts against all interpolations, by considering the agreement as furnishing the best evidence of the intention of the parties. It therefore shuts out all inquiry into parol proof which can give a different sense to the instrument. It has been judicially said, "that men's deeds and wills, by which they settle their estates, are laws which private men are allowed to make, and they are not to be altered, even by the king in his court of law or conscience," and the rule, as a general one, is equally applicable to a court of equity. It is most true, that the court of chancery, in the exercise of its moral jurisdiction as it has been emphatically termed, will upon the proof of fraud, mistake, or surprise, raise an equity, by which the agreement of the parties shall be rectified. To cite many cases on this subject would be useless, as fraud and, mistake are acknowledged branches. of equitable jurisdiction. As where on the loan of money, it was proposed that the borrower should give an absolute. deed to be defeasanced by an instrument to be executed by the lender, who refused to give a defeasance after he had got possession of the deed-Lord Nottingham, after the enactment of the statute of frauds and prejudices, upon parol proof of the fraud, rectified the deed by considering. it as a mortgage. 1 Eq. Ca. Ab. 20. Filmer vs. Gott, 4 Brown's Parl. Ca. 230. So if a clause of redemption be omitted, through fraud, to be inserted in a deed granting annuity, a court of equity would reform the agreement by parol evidence aliunde. Irnham vs. Child, 1 Brown's Ch. Rep. 92. The cases in which courts of equity have ad-. mitted parol proof for the purpose of rectifying mistakes in written agreements, are numerous. In Simpson vs. Vaughan, 2 Atk. 31, Lord Hardwicke, on the ground of mistake, gave relief by considering a joint bond as a joint and several one; and the same principle is established in Bishop vs. Church, 2 Ves. 101; and Thomas vs. Frazier, 3 Ves. 400 and 401. In Baker vs. Paine, 1 Ves. 457, the Lord Chancellor relieved against a mistake in articles of agreement, and his lordship observed, "how can a mistake in articles of agreement be proved, but by parol proof. It is not read to contradict the face of the agreement which the court would not allow, but to prove a mistake therein." In Langley vs. Brown, 2 Atk. 195, Lord Hardwicke says, mistakes and misapprehensions in the drawers of deeds, are as much ahead of relief as fraud and imposition. And Lord Eldon, in Townshend vs. Strangroom, 6 Ves. 328, remarks, that it would be very singular if the jurisdiction of the court should not be capable of being applied to cases of mistake and surprise, as well as of fraud. The court do not mean to intimate an opinion how far it would be competent for a complainant, who seeks a specific execution of a contract, to offer parol proof of fraud or mistake for the purpose of proving that the parties intended to give a different sense to the instrument from that which it imports. On this point Woollam vs. Hearn, 7 Ves. 211, and Higginson vs. Clowes, 15 Ves. 516, may be consulted. But it must be remembered, that although relief can be had in equity against a deed or contract in writing, founded in fraud or mistake, still it is essential that the fraud or mistake should be alleged in the bill as the ground and object of parol proof. It is essential, on every principle of correct pleading, that that which gives jurisdiction to the court should be distinctly and substantially alleged. If you call in the aid of a court of equity to relieve against a fraud or mistake, you must aver that the contract sought te be reformed, imports a different sense from that which the parties designed to give it, and that this was the result of fraud or mistake. The complainants should have stated in their bill the real agreement between Pumphrey and Wesley, and that through fraud or mistake the deed imports a contract different from that which the parties had entered into. It is not sufficient to state that the mortgage deed was given for, the purpose of indemnifying Wesley against his suretyship. For if the parties voluntarily choose to express themselves in the language of the deed, they must be bound by it. From aught that appears on the face of the bill, the morgagor and morgagee did agree, that the deed should be executed in the form that it bears; and to permit them to prove by parol evidence a different intent, from that which they had deliberately and explicitly declared, would be to prostrate the best established rules of evidence; and under the adoption of such principles, testimony extrinsic the instrument, would in every case be admissible to substitute a new agreement in the place of the one which had been deliberately executed. See Irnham vs. Child, 1 Bro. Ch. Ca. 93. Simpson vs. Vaughan, 2 Atk. 31. DECREE REVERSED WITHOUT PREJUDICE. 1823. Chalmers Chambers CHALMERS et ux. vs. CHAMBERS. JUNE, bil'. must be APPEAL from a decree of the court of chancery case, which is fully stated in the opinion of the court, argued at this term before BUCHANAN, EARLE, MARTIN, The was The relief to be given under a ge eral prayer in a DORSEY, and STEPHEN, J. by Magruder, for the appellants, and by Winder, for the appellee. The opinion of the court was delivered by agreeable to the case made by the bill, and not diffe rent from, or inConsistent with it. Where a bill was filed to have 2 mortgage deed recorded which had been omitted to be recorded within SIX months, and closes with a general prayer for EARLE, J. The bill or petition in this case, states the other and further ap relief, &c. a de cree not within the re it le bill. prayed by the A bill for one execution of a mortgage deed by the appellants to the pellee, and the reason of its not having been recorded with- ses be sold, &c. is in six months according to the act of assembly, and seeks to obtain a decree for recording the said deed of mortgage, and closes with a general prayer, that the complainant may have such other and further relief as his case. may merit, The late chancellor decreed, unless the mort purpose cannot be made to another. answer 1823. Chalmers VS Chambers pay gage money was paid, or brought into court by a limited The relief granted is not the special relief sought by the complainant; and if the decree is to be sustained, it must be under the general prayer for relief in the close of the bill. As to the relief to be given, under a general prayer, the rule is, that it must be agreeable to the case made by the bill, and not different from it, or inconsistent with it. The case made by the bill here, is the execution of the mortgage deed, and the omission to have it recorded, within the period prescribed by law; and the relief given, is a sale of the mortgage premises, to pay the mortgage debt. Is this relief agreeable to the case made by the bill? is the particular point to be by us decided. In forming an opi nion on it, we have not much hesitation. Can that relief be said to be agreeable to a case made in a bill, which must from its nature be founded on another and a different case? A decree to foreclose and sell mortgaged premises, must be based on the nonpayment of the mortgage money, at the stipulated time, and of this the chancellor ought to be convinced, when he makes the decree. It should be stated in the bill specifically, that the defendant may not be surprised, but may have an opportunity to show the mortgage money paid and satisfied. This bill was filed about the time the first instalment of the mortgage money became. due, and twelve months before the residue of it was payable; and if the case set forth in the bill had apprised the defendants of the object of the complainant to foreclose and sell, they might have shown the first instalment paid, and that at the time of the filing of the bill, the complainant was not entitled to, the redress asked by him; at least they might have had an opportunity of showing this, which the bill as framed deprived them of. There must have been, on the hearing of this case, a total desertion of the specific relief prayed, and under the general prayer, specific relief of another description asked, which is wholly ipadmissible. The bill made for one purpose cannot be made to answer another. DECREE REVERSED WITHOUT PREJUDICE. |