Scott, White & Co. vs. Henry & Cunningham. [JANUARY the answer in regard to the misrepresentations and inducements under which he says it was executed, be also received and weighed as evidence in determining whether the deed was in law executed or not. It is a well established rule that affirmative matter in avoidance of the allegations in the bill, must be established by evidence independent of the answer, which cannot be used for that purpose. But the point of difficulty in this and most other cases, is to distinguish between that which is strictly responsive to the allegation, and that which is affirmative of a new fact. This being a question of evidence, it may perhaps be more familiarly illustrated by rules applicable to common law issues. Here the allegation may be considered the fact to be proven and the answer tendering the general issue. In chancery, the complainant makes the defendant a witness and brings him upon the stand. Suppose the fact to be proven (as in this case) should be the exccution of a deed, and the witness upon interrogatory should say, "I saw the deed sealed and delivered." At common law, the defendant would surely have a right to cross-examine him touching any matter which might be given in evidence under the plea of non est factum. And so we apprehend the rule to be in chancery proceedings. When the defendant is called upon to answer, he may state any fact which could be given in evidence under that issue, as fully as if cross-examined for that purpose. The object to be attained (proof of the execution of the deed,) is precisely the same in the one court as in the other; the same facts, which would establish its validity or defeat it in the one court, would also in the other; and the only difference is, that in chancery, the defendant is put upon his oath as a witness upon particular facts alleged in the bill, whereas, at common law, he would not be a competent witness. The right of a defendant to testify in a chancery case, is limited to particular facts alleged, and where the defendant admits the facts and sets up others in lefence in avoidance, the answer is, in effect, a plea of confession and avoidance, and must be proven by the defendant just as such plea at common law would. As where the answer admits the execution of a note and sets up payment. Nichols TERM, 1852.] Scott, White & Co. vs. Henry & Cunningham. v. Daniel, Walker's (Miss.) Rep. 224: or where to a bill to foreclose, the answer of the defendant sets up usury as a defence, the answer is not evidence for him unless the usury was the subject of inquiry in the bill, (McDaniel v. Barnum, 5 Verm. R. 279, Green v. Hunt, 1 John. R. 580:) or where the deed is alleged to have been made on a different day from that of its date, it is affirmative matter which must be proven. Breckenridge v. Ford, 3 Mon. 54: or on a plea of failure of consideration, the proof rests with the party making the defence. Higdon's heirs v. Higdon's adr., 6 J. J. Marsh. 51. And where the fact charged is the receipt of a sum of money, in order to charge the defendant with it, it has been held that should he answer that he had received the money, and had, thereupon, at once paid it over, making its receipt and payment part of the same transaction, the answer would be evidence as well of the payment as of the receipt of the money; but not so, if the payment was on a subsequent day, for that would be a different transaction. Thempson v. Termb, 7 Ves. 587. And in a case where the allegation was fraud, and possession was one of the grounds relied upon, and in regard to which the defendant was called to answer, it was held that the answer was evidence, as well of the explanatory circumstances connected with possession as of the fact of possession, for it related strictly to the point at issue, the fraud. Eastman v. McAlpin, 1 Kelly's (Geo.) Rep. 170. Without further references to adjudicated cases, as showing forth the true rule in the case before us, we will proceed to its examination. The fact to be proven was the execution of the defeasance. The defendant says, "I did execute it, but I did so under a misapprehension of facts and of the legal effect of the instrument." Suppose this to have been a case at common law, and the witness had been called to prove the execution of the deed. After stating that he witnessed its execution, could he be interrogated upon cross-examination as to the misrepresentations of the obligee at the time of his making the deed? If so, for what purpose? Surely for no other purpose than to show that it was obtained by fraud, and without any real assent of the mind. Scott, White & Co. vs. Henry & Cunningham. (JANUARY Stark. Ev., vol. 2, p. 479. All that White then could say, even if called as a witness, would be that he knew nothing of the contract himself, and that Paschal told him it was in accordance with that set out in the defeasance; for suppose he should add "which I afterwards found to be false," that would only be hearsay, as he admits that he knew nothing of the contract himself. The falsehood of this representation was then an affirmative matter about which the defendant did not know, (or if he did, it was no fraud upon him,) and which must necessarily be established by other evidence. Looking then into the record for this further evidence in order to affect the deed with fraud, against the contract itself and numerous circumstances all tending to prove that such was the contract, there is the deposition of Ogden, who gained his information of the matter touching the agreement with Scott from Paschal, and acted under Paschal's direction in making the deed, and therefore his evidence in regard to the terms of the original agreement between Paschal and Scott, was but Paschal's statement, and was not necessarily inconsistent with his proposition to Wilson; for it was by the terms of that proposition intended that the bill of sale, on its face, should be absolute, but nevertheless, for the purpose of securing Scott, White & Co., for the advance of the $750, so to be made by them. It is true that Scott, in his answer, says the sale was absolute and unconditional, but he admits that before his bill of sale was executed, he was informed by Paschal that his price was $1,000, and that if he, Scott, or the firm would advance $750, that he could arrange the balance with Wilson; he also conferred with Wilson on the subject of his, Wilson's, right to redeem, but says that no terms were made or entered into. By his letter, however, to Mrs. Wilson, he admitted that there was an agreement entered into substantially, indeed almost literally, such as contained in the defeasance, only that according to his version of the affair, there was a debt due from Wilson to them to be paid, as well as the sum advanced for the slaves, before they were to be given up, and in addition to these facts, when we consider the use of the slaves, hiring them on the boat and keeping an account of TERM, 1852.] Scott, White & Co. vs. Henry & Cunningham. their hire, expenses, &c., conduct which can only be explained or reconciled upon the ground that such defeasance did actually exist and that Scott, White & Co. were acting under it. Let it be remembered, too, that ample time was allowed for White to communicate with Scott, (and it is but fair to presume that he did so, they being partners, and this a partnership transaction,) and yet, we hear of no objection being made, but on the contrary, Scott, by letter, and White, by his conversations with Mrs, Wilson, and the firm by their use of the property and the manner in which they kept the accounts, substantially affirmed the defeasance. And as regards the verbal statement of Scott, in his letter to Mrs. Wilson of the additional item of claim which was also to have been paid, and White's declarations as to his understanding of the matter, the written contract concludes the parties from any reference to them, as part of the contract, so long as the written contract exists, for a contract cannot rest partly in parol and partly in writing. When a contract is once reduced to writing, it is to the writing alone that we must look to ascertain what the contract really is. Powel on Cont. 250. Ev. 1008. Randall v. Phillips et al., 3 Mason 383. Bowman et al., 4 Eng. 506. 3 Stark. Black v. The case reported in 3 Mason, is, in many respects, like this. In that case, as in this, there was a deed with a defeasance, which was assigned, and upon suit brought by the assignee to redeem, the defendant set up as a defence that there was another account not embraced in the defeasance which was also to have been paid. The opinion of Judge STORY upon the above state of facts is so clear and so much in point, that we will extract so much of it as relates to this particular question. He said: "So far as the answer in this case sets up new facts by way of discharge or avoidance of the matter of the bill, or alleges separate and independent agreements, they are not evidence for the defendant; but all such allegations must be substantiated by proof aliunde. This is the general doctrine in equity, and is not now susceptible of any real doubt. There is also an allegation in the answer of the defendant, "Jeremy Phillips," of an indepen Scott, White & Co. vs. Henry & Cunningham. [ JANUARY dent oral agreement previous to, or at the time of the execution of the conveyance and defeasance in 1792, that he should hold the estate as security for the payment of an account due him, &c., beyond the terms of the agreement in the defeasance. As to this point, it is sufficient to say, that no parol evidence can be admitted to vary or contradict the terms of that agreement, and therefore, the case must stand upon those terms, and the rights of Phillips be adjudged accordingly.” And so we say in this case, that so long as the written contract remains, (and we have said that the proof in this case was not sufficient to set it aside,) neither, the statement of Scott in his letter to Mrs. Wilson, nor any other parol evidence, can be admitted to vary or qualify the terms. This letter of Scott's is important to show that there was a verbal agreement in regard to the defeasance at the time the contract is made, and, in this respect, differs materially from his answer, with the single enlargement of the terms to embrace another debt. As in the case in 3 Mason, it is a substantial admission of the defeasance, and also of the rights of Wilson to see the slaves put to hire on boats under it, and this too after, it is but fair to infer that he was apprised of the acts of White, his partner, who also, according to the evidence of Mrs. Dillard, which stands unimpeached, admitted the defeasance, and promised soon to see that the slaves were restored to Wilson. However this may be, in weighing the evidence, the rule is well established, that in doubtful cases, the court should construe the contract to be a mortgage rather than an absolute sale. Thus in the case of Edrington v. Harper, 3 J. J. Mar. 353, where, to an absolute deed there was a defeasance that if the party choose to pay the sum of $312, the consideration money, with 6 per cent. interest by a given day, that the contract should be canceled, and that it was optional with the party to whom the defeasance was executed, whether he should pay or not, it was held to be a mortgage. The court in their opinion saying, "In all doubtful cases the law will construe the contract to be a mortgage, because such construction will be most apt to attain the ends of justice, and prevent fraud and oppression. |