72 Miss. 932 | Miss. | 1895
delivered the opinion of the court.
In May, 1873, John A. Klein was appointed guardian to the appellee, by the chancery court of Warren county, and gave bond as guardian in the penalty of two thousand dollars, with George M. Klein and J. F. Baum, appellant’s testator, as sureties. In May, 1874, the appellee became entitled to receive, in distribution from the estate of a relative, another considerable sum of money, and the chancellor required the guardian to execute an additional bond in the penalty of $6,100,
The objection most strenuously urged to the decree rests upon the following facts proved, or offered to be proved, by appellant: The guardian had loaned a part of his ward’s money to Mrs. Mary Irving. In June, 1884, the guardian being then dead and his estate hopelessly insolvent, the appellee, who then resided in the state of Texas, came to this state to look after her estate. On the sixteenth of June, Mrs. Irving made to her a conveyance in the following language: “This indenture, made and entered into this the sixteenth day of June, 1884, by and between Mary Irving, of the city of Vicks burg, county of Warren and state of Mississippi, party of the first part, and Mary Grace Lynn, of the state of Texas, party of the second part, witness-eth: that, whereas, John A. Klein, late of said city of Vicksburg, did, on or about the fourteenth day of February, 1874,
The deed now under examination contains, as is clearly to be seen, no mere recital of a consideration paid or to-be paid. Its recital is only of the facts necessary to be stated to intelligently apply the contract of the parties to the subject-matter. Having set out the relationship of debtor and creditor, and the history of the transaction Horn which it arose, the deed then proceeds to state what the parties agreed, contracted and did in reference to the dissolution of the relationship. Mrs. Irving did some-' thing; she conveyed the land to Mrs. Lynn. Mrs. Lynn did something; she released the debt to Mrs. Irving. One transferred a right, the other released a right. If it be said that
In the multitude of cases in which the question of the admissibility of extrinsic evidence to prove a separate oral agreement made before or contemporaneously with a written contract, decisions may be found which would warrant the introduction of the evidence offered by the defendant, but such decisions, we think, rest upon a misapplication of legal principles to the facts of the particular transaction. A very full collection of the authorities, accurately grouped, may be found in the note to Ferguson v. Rafferty, 6 Law. Rep. Ann., 1. We refer to only a few, which serve to illustrate the principle we are considering. Before referring to the cases, it is well to note that the rule excluding extrinsic evidence ‘ ' is directed only against the admission of any other evidence of the language employed by the parties in- making the contract than that which is furnished by the writing itself. ’ ’ 1 Greenl. on Ev., § 277. In Lindley v. Lacey, 17 C. B., N. S., 578, there was a written sale of the fixtures, furniture and good will of a business. The seller was indebted to one Chase, Avho had en
The recitals of the conveyance now under consideration show very clearly that the minds of the parties were directed to the precise matter to which their negotiations had referred. It was a settlement of the sum due by Mrs. Irving that was in view, and the language of the writing, while consisting perfectly with their understanding when applied to this matter, is incapable of being so enlarged as to include the release of the general liability of the guardian without importing a new element into the contract. No more precise and accurate statement of the rule has been made than that contained in the opinion of Judge Campbell in Cocke v. Blacbourn, 58 Miss., 537, that, “where parties embody their mutual agreements in a formal written instrument, it must be taken as containing all they then desired to preserve the evidence of, and that it is not competent, after-wards, in a trial at law, to add to or subtract anything from it, by parol evidence of something which it should have contained or omitted. ’ ’ While the present proceeding is in chancery, the pleadings do not seek a reformation of the instrument nor suggest any circumstance that would entitle the defendant to that relief. The same rule is, therefore, applicable, as would be in a legal action.
The appellant’s contention that the rale excluding oral evidence to vary the terms of the contract cannot be applied here because her testator was not a party to the contract, is answered by the fact that the claim she asserts is under the con
The first guardian’s bond was not discharged by the second one directed to be given when the ward’s estate was augmented by a new inheritance. Mc Williams v. Norfleet, 60 Miss., 987.
The appellant cannot assign for error matters which affect other defendants who refuse to join in the appeal. Code 1892, § 4378. We find no error in the decree, and it is
Affirmed.