3 Del. Ch. 466 | New York Court of Chancery | 1870
This is certainly a case of great merit on the part of the complainant, and it would be doing exact justice between the parties to grant the prayer of the bill.
But the Statute of Frauds presents an insuperable bar. The written contract of sale relied upon, fails, in its description of the premises sold, to satisfy the requirements-of the Statute. The defect is such as cannot be supplied by parol evidence, unless there had been a part performance ; and even the admission made by the answer of quite enough to ascertain and locate the premises,
Technical precision or minute detail is not required, for such contracts are mostly drawn by. unprofessional: persons; they are merely executory,.,and'--the Statute itself, in using the term “memorandum,” must have' contemplated such writings to be wholly informal. Nevertheless, the substance of the contract, — all that is necessary to enable the court to execute it,: such as the subject-matter, the price, and all material stipulations essentially must appear, however informally yeither by the terms of the memorandum, or, as C. J. Shaw’expresses it, “by reference to, some other deed, record,,'or other matter.” The principle material to be here more particularly stated is, that a deficiency in the memorandum as to the terms or subject-matter of the contract cannot be supplied by any extraneous evidence, whether written or parol, unless the extraneous matter be referred to in' the- memorandurn itself, so as, in legal effect, to be incorporated into it. Clinan vs. Cooke, Sch. & Lef., 22, a leading
We may now proceed, in view of what we have seen the Statute requires, to. examine the memorandum of this
And such, unfortunately, in this case, on another point.' For after we have found Broad Street referred to, arid also" the place of beginning, viz - 170 feet from the south side of Green, on the east side of Broad, it will still remain to trace the boundaries of the two acres and orie'hundred’ and fifty square perches of the land. The testimony' shews, the lot sold was previously.held by Green, not as a separately bounded lot, but as parcel of a larger tract... which he had laid off in squares and streets. What was intended to be sold could not be identified, as is usually done, by an actual separate holding of the premises under lines before established, but it remained yet to be carved out from the main tract which surrounded it, except on the street si.de, and it could be identified only by running new lines. For doing this the memorandum fixes the place of beginning, viz: — 170 feet from Green street but nothing more ; does not enable us to move another step., It gives neither the depth nor front. “A front of one acre-. “ on Broad street,” mentioned in the memorandum means nothing. Here, then, though we are at the place where the lot is to be located, the memorandum affords us no , means by which to do it. If the Court should as it is
-The fatal,defect,.in -this caséis, that the lines.were - hot previously run and incorporated-in, the contract-, or. the:1 depth or front,.of >the„l.o.t-giye-n, .Qr if the metes and bounds were to, be ascertained by a subsequent survey,.that some reference was. no.t,made to, such contemplated survey so as to make ite,results a-part of, the contract, according to the rule before-referred to, as announced by C. J. Shaw, Lord Redesdale, and Chancellor Kent.
I have reád with ca'r.e all-the -cases cited on this point for tHe -complainant. "They are all distinguished from this one by -the fact'thM, in -them, the property sold was held by some previously- established and known boundaries, and that the terms of description- used applies to the premises as so held, such as ,£ Mr. Ogilvie’s House,” being his house and premises as then "occupied, in Ogilvie vs. Foljambe, 3 Mer., 52; “a wharf and premises,” in Barry vs. Combe, 1 Peters S. C. R., 652; “the wharf and flats occupied by Towne and Hardin,” in Gerrish vs. Towne, 3 Gray, 86; “ a tract of land in Southborough known by the name of the Mill Spot,” in Woods vs. Sawin, 4 Pick, 322 ; “ a tenement, in the occupation of Hicks and Campbell, which contains two stores, the small built house which Dr. Cringan has his shop in, and a large lumber house, and the lot of ground extending to Crouch’s line,” Coutts'
I am, therefore, brought to the conclusion that the bill must be dismissed. The effect of the decree will be to work injustice in this particular case, but that is a less evil than to compromise the policy of a wise and beneficial law. I cannot do better than apply here the observations of an able writer, treating of this very statute, “Where,” he says, “integrity is a victim to the “ Statute, it suffers the consequences of its own neglect of “the means thereby provided for its security against “fraud, and of the rational maxim of law, vigilantibus non “ dormientibus leges subveniunt. The principle of law and “government require that particular hardship, and cases “even of transient injustice, must be endured, rather than “that the standing policy of justice should be disturbed. “ A law composed with the design of obstructing the facili“ties for fraud, and removing the temptation to perjury, is “baffled in its general policy by a subjection to rules of a “fluctuating operation ; and the anxiety to take cases out' “ of the Statute is the source of the inconvenience which “has been reproachfully imputed to the Statute itself.” Roberts on Frauds, 151.
Let a decree be entered dismissing the bill, but without allowing costs to the defendant. As he is brought
The Chancellor :—
I have considered with care, and, so far as I can know myself, with candor, the views presented, upon 'the re-argument, by the complainant’s counsel, of the point on which the opinion heretofore announced, rested, viz; the failure of the written contract sufficiently to locate the bounds of the lot intended to be sold. The rule of law which has been applied to the case is not questioned, that is, that the description of the premises, like all the essentials of a contract, must, under the Statute of Frauds,
Parol evidence, to a considerable extent and variety, is admissible in aid of written contracts ; but it is admissible only for the purpose of interpreting the meaning of words or expressions used in the writing, and not, in any case, to supply a deficiency of expression. And this restriction would seem to apply more stringently to cases in which the contract, or instrument, is one required by statute to be in writing, than to those which may be good without writing.
Now the argument, conceding these principles, claims that there are, on this memorandum, expressions which, even if not sufficient, taken by themselves, are yet so explained by the evidence as to ascertain the boundaries of the lot. A “front of one aeré;” is an expression relied on as fixing the length of the front line ; the running parallel of Green street, applied to the lot as a whole, is supposed to ascertain its shape to be a paralellogram; and thus the length of the front line and direction of the sides being found, the quantity sold, i. e., one acre and 150 square perches, would locate the back line. The whole of this argument rests upon the assumption that “front of one acre” means a line of such length as equals one side of a square acre. Does it then appear, — not conjecturally, — not as an inference from the impossibility of giving any other sense to these words, but does it appear with that reasonable certainty which the policy of the Statute requires, that such is the sense of these words? Now, in answer to that question, we observe,first, that this phrase, “front of one acre,” has no proper application to a line, and has not a natural or generally acknowledged and received sense, such as is here claimed for it. Again, although it is unquestionably true, that the words may have such a sense by usage, either local or
To give to the survey the effect here desired, would solve the difficulty, and, probably, effectuate the real purpose of the parties. But to do so, would violate a settled rule of law, viz: that parol evidence of the intention of parties in the particular transaction, cannot be admitted to give a construction to the words of a written instrument; in no case to vary or control the sense of plain and unambiguous words, and not to explain doubtful or ambiguous words in those written instruments which are required by statute or by the nature of the transaction, as the only evidence of the transaction. Let us examine this point, carefully.
First, it must be observed that the proposed use of this survey has no direct bearing upon the sense of these words, “ front of an acre, ” like the effect of the ordinary, recognized words of interpreting words by ascertaining in what sense they have been used, either locally, or in some act, science or trade to which they relate, or even by the parties themselves in prior transactions, so that having, by such means, ascertained the sense of the words, the Court can read in them the intention of the parties without any extrinsic proof of that intention. But the attempt is to reverse this, the legitimate mode of interpretation ; it is first to prove by the survey, as a part of
Taking such to be the real effect of the survey as sought to be used, it is encountered by the rule that parol evidence of the actual intention of parties cannot control or influence the construction of written instruments.
I-n no case can such parol evidence contradictor vary the clear sense of written words; whether they are admissible to explain a doubtful or ambiguous sense(which is the case with these words) may depend upon these circumstances. If the transaction to which the writing relates, be such as might be proved by parol, not being required to be in writing, parol proof of intention might be deemed admissible, merely to explain the sense of doubtful words, not contradicting 'the-written evidence adopted by the parties, nor violating any statute prohibition against parol evidence of the transaction. It is only on this ground that the case of Gray vs. Harper, 1 Sto. R., 594, and others like it, can stand, when under a contract .for a purchase of a certain work at cost, a contract which might have been wholly by parol, conversations of
Subject to the exception stated byC. B. Abinger, it is the rule that, where writing is required as evidence of intention, doubtful words in it cannot be solved by parol proof of the actual intention, 1 Jarm. on Wills, states this as a broad and clear rule in the case of wills; excluding parol evidence either to “contradict, add to or explain” (j>. 349.) or “for the purpose of controlling or influencing,” (p. 358). It is supported by many authorities upon wills. An early one was Strode vs. Lady Falkland, 3 Ch. Rep., 98, where the question being, whether the words of a devise “all other my lands, tenements and hereditaments “out of settlement” should include a reversion, it was unanimously agreed by Lord ' Chancellor Cowper, the Lord Chief Justice, and the Master of the Rolls, that evidence to prove the intention to include such reversion was inadmissible, “for that where a will was doubtful and
It is not meant that words may not be construed or applied by means ’of extrinsic evidence ; but that such evidence must not be proof of intention in the particular transaction. The extrinsic evidence, admissible in aid of written instruments, is of certain, well-defined sorts, and may be reduced to two general classes, depending upon the object for which extrinsic evidence is needed. The object is two-fold. It may be to apply terms plain and unambiguous on their face to their subject-matter, or for the purpose of identifying the person or thing to which they relate. For such a purpose, considerable scope is allowed in proving the situation or qualities of the thing mentioned in the instrument, the fact that a party holds
I must, in candor, confess myself unable to go with this decision to its full extent. It would seem that in the administration of a charity, which is rather an executive, than a judicial act, where the object of such a charity is the propagation of certain ■ doctrines or opinions, religious or otherwise, the opinions of the founder upon the subjects to which the charity relates, may be a legitimate subject of inquiry, without other restriction as to the sources of inquiry, than that they do not contradict the written evidence. On these more liberal principles, a religious charity of like nature, was dealt with in Atty-Gen. vs. Pearson, 3 Mer. 353, 7 Sim., 290; and the like principle was applied to Lady Hewley’s charity, by Lord Chancellor Lyndhurst, when the case was before him. 7 Sim. 309, n. But the opinions of the Judges in the House of Lords are useful for our purpose, because they establish a clear line of discrimination which, on the one hand, admits extrinsic evidence of that general nature which consists of facts connected with the subject-matter of the instrument, tending to identify the person or thing referred to, and necessary to apply language, plain on its face, to the subject-matter, and evidence which consists of translations or usage as means of interpreting language, not intelligible on its face, but, on the other hand, excludes all evidence not bearing directly on the words, and merely showing, independently of the words, what the parties intended in the particular transaction, whether such evidence
And now we may proceed a step further and inquire, how far this principle has been observed in those adjudged cases in which the attempt has been to construe written instruments by the acts of the parties, which is the kind of proof adduced in this case. The precise question has been much discussed in a class of cases arising under leases for lives, with a covenant for perpetual renewal. In these cases the question was, whether the covenant for renewal was to be construed so as to exclude or include in the new lease a like clause of renewal, and the attempt was to construe the covenant according to the acts of the parties under it. The first of these cases was one sent from chancery by Lord Bathurst for the opinion of the Court of King’s Bench. Cooke, vs. Booth, Cowp., 819. This was a lease for three lives with a covenant for renewal. There had been several successive renewals granted by the lessor, the new leases each containing a like clause for renewal as the first, but after the lessor’s death, his devisee refused, upon the expiration of one of the lives, to grant a new lease with a like clause of renewal. The Court of King’s Bench held him bound, upon the ground that the parties having four times successively renewed under it,had put their own construction upon it. This decision gave great dissatisfaction to the English equity judges. Lord Thurlow, who sat upon the return of the certificate in that case, disapproved of it, although feeling himself bound to decree in accordance with it. 3 Ves. Jr., 298. Afterwards the principle of Cooke vs. Booth was condemned by Lord Alvanley in Baynham vs. Guy’s Hospital, 3 Ves. Jr., 295,
In another and later case in the Exchequer, Maxwell vs. Ward 13 Price, 674, the same view is said to have been strongly taken. (3 Ves. Jr. 299, note 2, 696, note 3). I have not been able to find the case. Sir Edward Sugden, upon a review of this course of decisions in 1 Sugd on Vend. Ch. III, Sec. 10, par. 14, concludes that “ it appears “ to be now clearly settled that in the construction of an “agreement or deed, the acts of the parties cannot be taken into consideration.” A decision by the same learned author, as Chancellor of Ireland is cited by Green-leaf, (sec. 295 n.) From Atty. Gen. vs. Drummond, 1 Dru. and War., 353, to the point that the acts of a founder of a charity may be shown in aid of the deed ; and there is also
The editors of Sumner and Perkins’ edition of Vesey Jr., in their notes to the cases before cited, which were before Lord Alvanly, Sir Wm. Grant and Lord Eldon, (3 Ves. Jr., 294; 2 Ib., 690; 6, Ib. 237;) have questioned the accuracy of the principles stated by those Judges, that
Upon the whole, the rule to be gathered seems to be that, where a written instrument is required by statute, or by the nature of the transaction, such as a will, deed or contract respecting lands, parol evidence of the intention of the parties in the transaction, whether shewn by declarations, or acts, at the time of, or after, the transaction, is inadmissible as well to explain or construe doubtful or insensible words, as to contradict plain and ambiguous words. The admission of such evidence opens a door to the uncertainties and dangers of parol testimony, which it is the very object of statutes, such as those of wills and of frauds, effectually to prevent. It is not surprising if courts, under the pressure of an inclination to give some construction to instruments of an executed character, under which the rights of parties are involved, one way or the other, such as wills and deed, should, sometimes, yield admission to strong evidence of intention, to construe doubtful words, especially in states where there is no equity jurisdiction for reforming instruments according to the intention of the parties. But we are free from any
The decree must, therefore, be entered as already directed.
The case of Atty. Gen., vs. Drummond, here referred to, will be found, upon examination, not to bear out fully the impression given by Greenleafs citation of it, without respect to its subject-matter.
The deed there under construction was made by certain members of trinitarian dissenting congregations to etablish a trust for certain purposes, viz : first,to support the protestant dissenting interest against unreasonable prosecutions; secondly, to educate youth designed for the ministry amongst protestant dissenters; and thirdly, to assist poor protestant dissenting congregations. The information was filed to prevent the application of any portion of the fund, in aid of the teachers of doctrines at varience with belief in the Trinity, and the case involved an inquiry into the construction of the deed with reference to the doctrinal character of the beneficiaries. The Lord Chancellor discussed, very much at length, the question, what kind of parol evidence was admissible to construe a deed.
In the course of the opinion, there occurs a passage which gives his conclusion, and is probably the foundation of the citation in Greenleaf; “ I reject, “therefore, at once, all evidence, which goes to show what the founders “ thought, what their opinions were, in order to put a construction on this “ deed; but I shall not exclude evidence which informs me what they did. I “ shall receive evidence, which goes to show, to what places of worship they “ resorted, or what their acts were, although this may not throw any light upon “the construction of the deed. I am clearly at liberty to receive such evidence, “ because this deed proceeds upon certain existing foundations, which, it was “intended, should be continued and maintained for the future. I must, therefore, “ inquire what were the foundations referred to by this deed, and I cannot do “ so without knowing how far the founders were mixed up with these establish- “ ments, not as to their individual opinions, but as to their acts, in forming a “ part of the general body, whatever their opinions were, who resorted to these “ foundations.
“Nobody will dispute, that I am entitled to evidence (indeed, I am “ bound to know it without evidence) of the opinions professed by the general “body of Presbyterians. I am at perfect liberty, with evidence or without it,
The case of Lady Hewley’s charities, before referred to, was then pending the House of Lords, and Sir Edw. Sugden declined to make a final decree in the case before him, until that case should be concluded. It will be observed, however, that the the views expressed by this distinguished judge and author, in this case, are, in no respect, antagonistic to the principles laid down by the Chancellor in the case reported in the text; and, with respect to the subject-matter of the case of Atty. Gen. vs. Drummond, they do not go further, if, indeed, so far as does the Chancellor in his observations upon the case of Lady Hewley’s charities.