Ejectment for a house and lot in Second street, in the city of
Philadelphia. The action was tried by a Jury at bar, in January
term, 1788, and a verdict given for the Plaintiff. A motion was
then made by the Defendant's counsel for a new trial, which was
argued, in favor of the new trial, by Lewis and Heatly, and,
against it, by Ingersol and Sergeant, in January term, 1789: and,
the Court having continued the cause under advisement, gave their
opinion in the present term.
The case, upon the evidence, was as follows: Dorothy Gordon,
being seized in fee of the moiety of the premisses in question,
intermarried
Page 1 U.S.
424, 425
with Lawrence Saltar, and, having lived long with him, and no
prospect of children, she was desirous of making a provision for an
only sister of the whole blood, to wit, Mary, one of the Lessors of
the Plaintiff, whose husband, John, the other Lessor, was
considerably reduced in his circumstances. It then appeared, that
Mrs. Saltar, while upon a visit, with her husband, to his brother,
John Saltar, who resided at some distance, was taken sick; and,
after a conversation relative to her estate, it was agreed by her
husband and herself, that it should be settled on them for their
lives, and for the life of the survivor of them, and, afterwards,
that it should go to her sister, the said Mary Thompson, for life,
and the heirs of her body lawfully begotten; and for want of such
heirs to the children of her three sisters of the half blood. Mr.
Saltar, accordingly, procured a deed of the above effect to be
drawn by a Conveyancer in Philadelphia; but the second remainder
being expressed to be, 'for the issue of the bodies of the three
half sisters,' one of whom was unmarried, Mrs. Saltar, when the
instrument was read to her, thought the expression indelicate with
respect to her three half sisters, and, for that reason, persisted
in refusing to execute it, not withstanding all the persuasion of
her friends. Upon this refusal, her husband proposed to her, that a
deed should be drawn from them to his brother John, who, with his
wife, should reconvey the premisses to him (the said Lawrence) and
herself, as jointenants, in fee; and he promised that as soon as he
got home, he would make his will, or by some other means, settle
the estate in the manner that they had before projected. Mrs.
Saltar hesitated at this proposition; but, on her sister, Elizabeth
Saltar's, telling her, that 'she might rely upon him; for, if there
was a man in the world, who could be trusted in such a case, it was
him;' and on her husband's requesting her to comply, declaring,
that 'if there was faith or truth in man, he would honestly perform
what he again promised;' she executed the deed to John Saltar, who,
with his wife, reconveyed the estate, according to the previous
stipulation. Mrs. Saltar died in the year 1781, about six months
after the deeds were signed; and her husband died, intestate and
without issue, about eighteen months after her decease. Mr.
Lawrence Saltar always, during his life time, managed the estate
that had been his wife's, as if it belonged to the Lessors of the
Plaintiff: In his last sickness, indeed, when near expiring, he
told his brother, that he was very uneasy on account of his leaving
no will; and soon after this declaration he lost his reason.
The preceding facts were proved by John Saltar and Elizabeth,
his wife; together with the confession of the Defendant, that the
Lessors of the Plaintiff had the title in equity, although he had
it in law. There was, indeed, a contradiction, in some respect, of
the case of the Lessors of the Plaintiff, in the testimony of Abel
James, who related a conversation which he had with Lawrence and
Dorothy Saltar a few days before the deeds were executed, at which
time
Page 1 U.S.
424, 426
the witness said, that they had agreed to settle the estate in a
different manner. The motion for a new trial was made on two
grounds: 1st. Because the parol evidence ought not to have been
admitted to go to the Jury: And, 2ndly, Because the Jury gave a
verdict against evidence. The Chief Justice having stated the case,
and the objections to the verdict, proceeded to deliver the opinion
of the Court in the following manner:
M'Kean, Chief Justice. The Court have heard the reasoning in
support of the motion, and the arguments against it; and, upon a
perusal and full consideration of the cases cited on both sides,
our opinion is unanimously formed in favor of the Plaintiff. In
support of the first ground assigned for a new trial, it has been
urged, that the parol proof contradicted the deed given by the
witnesses themselves; that in Pennsylvania lands must pass by deed,
will, or some writing signed by the parties, or by the act and
operation of law; that a declaration of uses must be by deed; that
no parol evidence should be admitted respecting an agreement, or
deed, which may add to, diminish, vary, or contradict the
agreement, or deed, but only to explain it; and that John Saltar
and his wife were estopped from saying any thing against their own
deed. In corroboration of these positions, the following books have
been cited: Cowp. 47.260. 2 Black. Rep. 1250.335.327. 2 Atk. 383. 3
Atk.388. 2 Wils. 506. 3 Wils. 275. Bac. Man. 90 Regula. 23. 1
Black. Com 78. 79. 2 Black. Com. 13. 3 Bl. Com. 439. Bull. N. P.
357. 5 Bac. Abr. 362. Brown. Chan. Cases. 92. 94. 2 Bac. Abr. 309.
1 Wils. 111. Fitzgib. 213. 1 Bac. Abr. 75. 1 State Laws. 462.3.
Since the statute of frauds and perjuries in England, and the act
of Assembly for preventing frauds and perjuries in Pennsylvania, it
has, indeed, been a general rule, that no estate or interest in
lands shall pass but by deed, or some instrument in writing, signed
by the parties; and that no parol proof shall be admitted to
contradict, add to, diminish, or vary from a deed or writing. But,
it is certain, that there are several exceptions to this rule, and
many cases may be found in which parol proof has been admitted, not
withstanding writings have been signed between the parties. For
instance, where a declaration is made before a deed is executed,
showing the design with which it was executed, the decisions in the
Court of Chancery have been grounded upon parol proof; and in the
case of Harvey v. Harvey 2 Chan. Cases 180. three successive
Chancellors decreed, on the parol proof of a single witness,
against a deed of settlement. See Fitzg. 213. 214. In cases of
fraud, and of trusts, though no trust was declared in writing,
exceptions have likewise taken place: 1 Vern. 296. Thynn v. Thynn.
As, where an absolute deed was given, but intended to
Page 1 U.S.
424, 427
be in trust, on parol proof of the party's intention, the trust
was decreed. 2 Vern. 288. Hampron vs. Spencer; et e contra. And the
same decision was pronounced, in the case of an agreement, or,
trust, being confessed by an answer, although such trust had only
been declared by parol. Ibid. 294. Bellasis v. Compton. Prec. in
Chan. 208. Croyston v Banes. So, where a party is drawn in, by
assurances and promises, to execute a deed, to enter into a
marriage, or to do any other act, and it is stipulated that the
treaty or agreement should be reduced into writing; although this
should not be done, the Court, if the agreement is executed in
part, will give relief. A man treating for the loan of money on a
mortgage, it was agreed that an absolute deed should be given by
the mortgagor, and a deed of defeazance executed by the mortgagee;
the absolute deed being given, the mortgagee refused to execute the
defeazance, but the Court of Chancery interposed to inforce justice
agreeably to the agreement of the parties. Prec in Chan. 103.4.
Skinn. 143. 9 Mod. 88. In another instance, where an absolute
conveyance is made for a certain sum of money, and the person to
whom it is made receives interest for the money, the receipt of the
interest will be admitted to explain the nature of the conveyance.
Prec. in Chan. 526. 1 Wils. 620. S.C. 2 Freem. 268. 285. There are
other authorities which bear a strict analogy to the case before
us. A copyholder, intending to give the greatest part of his estate
to his godson, and the residue to his wife, was persuaded by the
latter to nominate her to the whole, declaring that she would give
the godson the part designed for him: After her husband's death she
refused to perform this promise, and pleaded the statute of frauds
and perjuries, but the decree was against her. Again; A father
being about to make a will to provide for his younger children, is
prevented by his son and heir apparent's promising that he would
make the provision for his brothers and sisters: The son and heir
afterwards refused to fulfil this engagement; but, on an
application to the Chancellor, the decree was also against him. So,
where the issue in tail persuades the tenant in tail not to suffer
a recovery, in order to provide for younger children, upon an
assurance that the tenant in tail would provide for them himself,
which he afterwards, refuses, equity will compel him to do it.
Prec. in Chan.3. Devinish v. Baines. 2 Freem. 34. Chamberlaine v.
Chamberlaine. A voluntary settlement is made by A. to B. who,
afterwards, without any consideration agrees to deliver it up: This
agreement shall bind in equity; for a voluntary settlement may be
surrendered voluntarily. Prec. in Chan. 69. Wentworth v. Deverginy.
The Statute and Act of Assembly were made to prevent frauds, as
well as perjuries; they should be construed liberally, and
beneficially expounded for the suppression of cheats and wrongs.
Thus, where there has been a fraud in gaining a conveyance from
another, the grantee may be considered as a mere trustee. Barnard
in Can. 388. Lloyd v. Spillet.
Page 1 U.S.
424, 428
In the case now under consideration, Mrs. Dorothy Saltar was
seized in fee of the premises stated in the ejectment; and had she
made no conveyance, her sister, Mary Thompson, would have been her
heir at law; but her husband, whom she loved, wished to enjoy the
estate during his life, and she designed that her sister, and her
sister's children should have the estate uncontrouled by her
husband, With this view the deeds were executed; and, if the solemn
promise and agreement of Lawrence Saltar is not to be enforced, his
heir at law will have the estate, contrary to the intention of all
parties.
The question then is, whether the engagement of Saltar, not
being in writing, although it concerns lands of inheritance, is
void by the act of Assembly for preventing frauds and
perjuries?
We are of opinion, that it is not; and that the parol evidence
was proper to be admitted upon the trial of the cause. Here was a
breach of trust in Lawrence Saltar, a fraud in law, which is not
within the act. This is the reason of our judgment; a reason
warranted by a due construction of the act, and an attentive
consideration of its frame and design; which was, not only to guard
against perjuries, but, also, as I have already observed, against
frauds. It is to be remembered, that there is no purchasor,
bonafide, for a valuable consideration, without notice, in the
present case; the defendant claims under the heir at law of
Lawrence Saltar; he ought, therefore, to perform what Lawrence
should have performed; and equity will consider that as done, which
ought to have been done; Grounds, &c. of Law and Equity, 75.
Every man's contract (whereever it is possible) should, indeed, be
performed as it was intended.
The numerous cases cited, as well as some determined in this
Court, both before and since the Revolution (several of which are
in point) all turn upon the same principle, and are uniformly in
favour of the Plaintiff: And so many uniform, solemn decisions,
ought to be always of great weight and consideration, that the law
may be certain. I am glad, indeed, that the present motion has been
made, because it has afforded an opportunity of full deliberation
on the subject, and of settling it upon a satisfactory and
permanent foundation.
With respect to the second objection, we are clearly of opinion,
that the verdict was given agreeably to the weight of the
evidence.
And, upon the whole, direct, that judgment be entered for the
Plaintiff.
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