Brantley v. West, 27 Ala. 542

Brantley v. West

27 Ala. 542 | Ala. | 1855

CHILTON, C. J.

The general rule is, that no relief can be granted upon matters not charged in the bill, although the same may appear in proof, for the decree must be predicated upon the allegations and the proof. This rule is founded upon the substantial reason, that the bill, by its allegations, ■ ought to apprise the defendant of what he is expected to meet and defend against. If a contract materially different from that set up in the bill might be proved, and a decree rendered upon such proof, the defendant would often bo taken by surprise, and be denied the privilege of making his defence. Indeed, all proof outside of the allegations of the bill is irrelevant and improper. — Story’s Eq. Pl. § 257 ; McKinley v. Irvine, 13 Ala. 693-4, and cases there cited.

In the case before us, the contract charged in the bill is as follows: “ That, he, the said James West, might take into his possession all the property of the complainant, and should pay all the just debts of said complainant: and when this was accomplished, and the labor of complainant’s negroes should, at a fair and reasonable rate, amount to a sum sufficient to remunerate said West for the sums applied to the payment of the said debts, and a just and fair compensation, to said West for his trouble and expenses in the adjustment of the affairs and business of complainant, then the said J ames West would restore to the complainant the said negro slaves.” After averring that West went into possession of six slaves, a horse, a mule, three hundred bushels of corn, and three thousand pounds of fodder, it is stated, that “said James West was to account for them at a fair and reasonable price.”

It is then averred that, some time after West came to the *551possession of the said property, he induced complainant to make to him an absolute bill of sale to said negroes, “ upon the positive declarations and assurances of the said James West, that he would honestly and faithfully carry out and perform his original undertaking and agreement with complainant, to restore him the said slaves when he had retained them for a time sufficiently long for their labor, at a fair valuation, to amount to a sum sufficient to remunerate the said James West for all sums which he might pay for said complainant, and the necessary trouble and expense he might incur.”

It is averred, also, that at the time of the execution of the bill of sale, complainant'received of West the sum of nine hundred dollars, but paid it back to him bn the same day, and it has never been refunded.

The answer positively denies that the bill of sale was designed as a mortgage, but insists that it really was, what it appears on its face to be, an unconditional transfer of the property to the defendant. And upon a close inspection of the proof, not a single witness proves the contract as charged.

Upon this ground, the chancellor dismissed the bill; and, we think, properly.

But we think he might have refusd the relief prayed upon the merits. Assuming that there was a secret trust existing in favor of Brantley, we cannot resist the conclusion, that such trust was designed as a scheme to defraud his creditors. This is clearly inferable from the circumstances in proof. The complainant says in his bill, he received nine hundred dollars at the time of the execution of the bill of sale, and on the same day handed it back to the vendee. Why this was done hé docs not inform us. Neither is any motive shown for making the transfer absolute, when a trust or mortgage was intended, unless it be to deceive creditors who had not acquired leins upon the property. Again ; why limit the payments to be made by West to debts which were in execution, excluding expressly all others, as was done by the writing superadded at the bottom of the bill of sale, unless the object was to exclude all but 'such creditors as had a lien on the property which would override the sale, and thus save to the insolvent debtor the surplus? These circumstances, connected with the facts that, only tw'O days before the sale, Brantley *552proposed to run Ms negroes to avoid Ms debts, as proven by-Samuel West, and the secret manner in which they entered into the arrangement, even deceiving the subscribing witness into the belief that the transaction was an absolute sale and dona fide, very clearly show that the object was to defraud creditors. In such cases, courts both of law and equity leave parties to the consequences of their fraud. The maxim applies, “In pari delicto, melior est conditio possidentis.” — Addams Equity, 175; 1 Story’s Equity, § 61.

If, however, the decree of the chancellen could not be maintained upon either of the foregoing grounds, we are satisfied that, upon well-settled principles, the proof is wholly insufficient to justify the court in reforming this instrument, or decreeing it to be a trust or mortgage. When a party prays relief in the very- face of a written contract, upon the ground ■that such writing does not truly speak the meaning and intention and true agreement designed to be entered into between them, he must clearly bring himself within the exception to the general rule which gives the preference to written over parol evidence. He must establish, by clear and convincing proof, that the instrument, although absolute upon its face, was designed as a security merely. It is not sufficient to raise a suspicion, or doubt, as to whether the instrument which the parties have adopted as the evidence of their agreement, correctly states the contract. The court must be satisfied, by at least a clear preponderance of proof, that a mortgage, and not an absolute sale, was intended. — Vanmetre v. McFaddin, 8 B. Mon. 438; Jenison v. Graves, 2 Blackf. 440; Elliott v. Armstrong, id. 198; Chapman & Wife v. Hughes, 14 Ala. 218; Bryant & McPhail v. Cowart, 21 ib. 91-98.

I think it was very unfortunate that the courts of chancery ever so far relaxed the rule, as, in the absence of fraud or mistake in the execution of written instruments, to permit a complainant, in opposition to the denial of the defendant's answer, to prove by parol an absolute deed to be but a security, or an assignment in trust. It was, in my humble conception, an innovation fraught with dangerous consequences, and one which tends greatly to destroy the value of the salutary rule, which declares the writing itself to be the best evidence of what the parties intended should be the final and *553binding contract between them, where nothing has been left out of the agreement by fraud or mistake, which either party supposed was inserted in it when executed. But to recede now, after so many decisions of this court, would unsettle the law, and disturb existing titles. When, however, parol proof is allowed to control written instruments, it must be clear and satisfactory.

Such is not the character of the proof in the case before us. • On the one side, there is the absolute bill of sale, expressed in clear and explicit language, — the sworn denial of the defendant that it was intended to operate as a security or mortgage, and this denial substantially sustained by the subscribing witness to the instrument, Mr. Nelson Taylor, and by Samuel West; whereas the opposing proof consists of declarations of the defendant, as shown by two or three witnesses, which declarations were not charged in the bill, so as to afford the defendant the opportunity of meeting and explaining them,'— are, at best, easily misunderstood, and liable to be perverted from their true meaning. It were needless to set out the proof in this place, as it will appear in the statement of the Reporter. Upon a careful examination of it, wc are satisfied that it does not sustain the bill, and for this reason, if for none other, relief should have been denied.

Decree affirmed.