Collam v. Hocker

1 Rawle 108 | Pa. | 1829

The opinion of the court was delivered by •

Smith, J.

This case comes before the court, upon a writ of error to the District-Court for the, city and county of Philadelphia. It wás ah action' of trespass on the case, brought by the defendant in error- against the plaintiff belovvy for obstructing' his right of way. ' . • • . -

The plea was, not guilty.

The cause was tried on the'i7th day of April, ÍS26. On the trial in the court below, the plaintiff, the now defendant in error, gave in evidence, that he and his brother, Christopher Hocker, were, on the 17th day of September, 1822, seised in their demesne, as of fee, of two brick houses and lots of ground, in Green Street, in the township of the Northern Liberties, in the county'of Philadelphia, and being so thereof -seised, by deed, dated the same day and year, conveyed the same to a certain Enoch Addis, in fee. The plaintiff below further proved, that, at-the time of the said conveyance to Enoch Addis, he, the said John Hocker, was seised, in fee, of a certain other house and lot of ground, contiguous to the easternmost of the said houses, and, after having given this evidence, then offered to prove and give in evidence, “that a right for himself, his heirs and assigns, tenants and occupiers of the same house, to use an alley across the rear end of the lot ón which the easternmost of the two houses is erected, and between the easternmost and westernmost of said houses,' so, as aforesaid, grantedi to the said -Enoch Addis, was verbally reserved for him, at the time- of execu-' ting .the said deed: That the said Enoch Addis verbally agreed to the said'reservation, and that the defendant purchased of the said Enoch, with notice of the said reservation.”—This being objected to bythe defendant’s counsel, the court overruled the objection, and admitted the evidence to be given, and sealed a bill of exceptions.' This case then presents the following point:—Can parol testimony be admitted to show the reservation of a right of way, or of an alley, though not noticed or reserved in the deed?. I would here observe, that it does not appear to me to-be absolutely necessary for this court, in the present case, (nor is such my intention) to draw the exact line which should regulate the admission or exclusion of parol evidence in all future cases. If we were to do so, it might lead to great injury, and, in the language of a very learned and excellent judge, “ I would not undertake to do this.”—If it be shown that the evidence received, was not, on legal principles, admissible, it will be sufficient for the decision of the present point. It has often been said, that courts should be very cautious in admitting any parol evidence to supply or explain written contracts, and that it ought not to be suffered, so as to contradict or explain away an explicit agreement. And, in Meres v. Ansell et al. 3 Wils. Rep. 275, the court said, no parol evidence was admissible to substantially vary, alter, or impugn á written agreement; neither is it admissible to abate, or extend a deed. —In this state, I take it, the principle that parol evidence, which goes to destroy, contradict, extend, or alter a deed, is inadmissible, has been recognized, with some salutary exceptions and modifications;—for instance, where fraud or surprise in obtaining the deed, mistake of the scrivener in departing from his instructions, or any other clear matter of mistake are made to appear and present themselves to the court, parol- evidence has been held to be admissible in this state.—In the present case, the evidence given was not' to prove any kind of fraud, or surprise, or any mistake of the scrivener in executing his instructions; nothing of the sort was pretended;—on the contrary, it appears that the lots of ground • were fairly sold, and conveyed, absolutely,- by deed, to Enoch Addis, in which no reservation of a right of way is made or mentioned; nor do we hear that any thing.of this alleged reservation of a right to use an alley across the rear end of the, lots, was ever reduced to \yriting, or ever mentioned .to the scrivener who drew the deed, or left out of it by any mistake; indeed, it is somewhat singular,that neither the scrivener nor the witnesses who were called; neither Christopher Hocker nor Enoch Addis, who made the bargain, state, orpretend to intimate, that it.was left out of the deed by mistake, or that it had been agreed to be inserted in it:-—to say the most of it, it was a mere parol reservation, left in parol, and depending on parol. Is then such a case within the rules or exceptions in which parol testimony has been admitted and received to vary a written.deed? We think not.—The right of way is an incorporeal right, which will not pass without deed;—it is the subject only of a grant to' be passed by deed, and not by livery and seisin, and could not here be passed by a parol agreement, inconsistent with the deed from Hocleer to Addis; nor do I apprehend, that, under the existing circumstances of the present case, in relation to this claim of the right to’ the alley, chancery would or could compel a deed t,o be executed for it, by Addis or, Collam.—The parties mistook the law if they thought a right of way might be reserved by parol.—The salutary rule of law, that where an agreement is reduced to writing, all previous treaties between the parties,.are resolved into that, is strictly applicable here. • The intention 'of the parties must be collected from their written expressions, and not-from circumstances dehors their deeds... In this deed their expressions are intelligible, and need no foreign aid to explain them; and np ambiguity appears on the face of their deed. When then we have presented to us, a case in which parol testimony was offered and admitted to vary and contradict a deed,- (no.t an agreement but an'absolute deed, the'completion of all bargaining,) and tp establish a right of way by parol, we are of opinion the parol evidence ought not ,to have been received. And, therefore, the judgment of the District1 Court should be reversed, and a venire facias de novo awarded.

Tod, J. dissented.

Judgment reversed, and a venire facias de novo awarded.