35 Ala. 453 | Ala. | 1860
The appellee (who was the defendant in the court below) offered in evidence a paper consisting of a single sheet, upon which are found — 1st, a deed, dated 16th May, 1839, executed by McBryde and wife, conveying the land in controversy to Homer Black-man; 2d, a certificate by a justice of the peace, of the
The fee in the land was iu Mrs. McBryde, and if the words “the foregoing instrument,” as used in the last mentioned certificate, refer to the deed, and not to the relinquishment of dower, the estate of the wife in the land passed by the deed and certificate. But, if those words refer to the relinquishment of dower, and not to the deed, the estate of the wife in the land did not pass. Doe ex dem. Hughes v. Wilkinson, 21 Ala. 296 ; McBryde v. Wilkinson, 29 Ala. 662. The defendant insisted in the court below, that the certificate which follows the relinquishment was really applicable to the deed; and the court, in effect, permitted him to show by parol evidence, aud as an independent fact, that the deed of McBryde and wife, and not the relinquishment of dower, was the instrument intended to be designated by the words, “ the foregoing instrument,” as used in that certificate. 'The admissibility of this evidence is the main question which we are to decide.
The general rule, in reference to the construction of written instruments, is, that the inquiry is restricted to the meaning of the terms used, and to the intent which the language of the instrument expresses. It is true that, for the purpose of enabling the court to arrive at.the intention expressed in the writing, aud to make a correct
To the general rule which excludes any direct evidence of what the party intended, except such as may be furnished by the writing itself when construed in the light of the circumstances surrounding the writer when it was executed, the authorities have established two exceptions, the recognition of which has been forced upon the courts by the necessity of the case. The first of these is where the object is to rebut an equity, and prevails alone in courts of equity. — 2 Taylor Ev. § § 854, 861, and cases cited. The second exception alluded to is where the instrument refers to some external object, and it is made to appear that there are two or more objects, to each of which the language employed is applicable with legal certainty. In such cases, extrinsic evidence is admissible, to show to which one of these several objects the party intended to refer. — 4 Phill. Ev. (ed. of 1850,) 534, 536, 539, 540-1, 551; Wigram Extr. Ev. 14, (7th proposition,) 118,
In this class of cases, the inquiry is, what did the party intend to express; and any evidence which, upon general principles, is relevant and material to that inquiry, will be admitted. Declarations of the parties, made at the time of the execution of the instrument, or any other facts indicating an intention to refer to any one of the several objects, which appear to be equally within the words employed, are received, to settle the doubt as to-which was the object actually intended. — Wigram Extr.
The principle on which, in this class of cases, ihe courts receive direct evidence of the intention of the party in using particular words, is thus stated by Parke, B., in Doe d. Good v. Needs, 2 M. & W. 129: “ The characteristic of all these cases is, that the words of the will do describe the object or subject intended; and the evidence of the declarations of the testator has not the effect of varying the instrument in any way whatever : it only enables the court to reject one of the subjects or objects, to which the description of the will applies, and to determine which of the two the devisor understood to be signified by the description used in the will.” — See, also, Wigram Extr. Ev. 115; Tucker v. Seaman’s Society, 7 Metc. 208 ; Doe v. Hiscocks, 5 M. & W. 369.
Such eases meet exactly Lord Bacon’s definition of a latent ambiguity, which, he says, “is that which seemeth certain and without ambiguity for anything that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth ambiguity.” It is the nature of a latent ambiguity never to appear on the face of the writing, but to lie hidden in the person or thing or subject 'whereof the writing speaks. — Hand v. Hoffman, 3 Halsted, 78. And as it is raised by extrinsic evidence, it may fairly be dissolved by the same means. 4 Phill. Ev. 526.
In all other cases, therefore, except where the object is to rebut an equity, or where the language of the instrument is indifferently applicable to two extraneous subject-matters, it is the duty of the court to reject direct evidence showing how the maker intended the words he has used to be understood. — 4 Phill. Ev. (ed. 1850,) 522, 534, 551, 568; 5 M. & W. 369 ; Carrington v. Golden, 13 Gratt. 587, (593-4, 610;) Rosborough v. Hemphill, 5 Rich. Eq. 95, (105-6;) Schoppert v. Gillam, 6 Rich. Eq. 85; 1 Spence’s Eq. Jur. 660-1; Wigram, 9, 10, 76, 104; 2 Taylor Ev. § 854, and authorities supra.
Hence, when the queston to be determined is as to the
It follows from what has been said, that the propriety of permitting the appellee to show, by the testimony of the justice of the peace who certified the acknowledgment, that the words of-the certificate were intended to designate the deed and not the relinquishment of dower, depends upon the inquiry, whether the reference in the certificate to “ the foregoing instrument,” is a reference to some extraneous object; and if so, whether it is applicable with like legal certainty to each of the instruments above named.
The two deeds, and the acknowledgment, were all written on the same sheet of paper. They were all executed about the sapie time — all related to the same subject-matter — and the entire paper was introduced on the trial by the appellee as one piece of documentary evidence. The certificate of acknowledgment is simply a part of this paper — a mere dependent part, which, of itself, means nothing, and becomes sensible only by its connection with what precedes it on the same sheet. There cannot be a doubt, we think, that for the purpose of construing the certificate in question, the various writings which precede it on the same paper, and with which it is expressly as, well as tacitly connected, are to be read with the certificate, as if they all together constituted one writing. 4 Phill. Ev. 517-18; Cuthbert v. Wolfe, 19 Ala. 373; Rives v. Toulmin, 19 Ala. 288. Writings thus connected can no more be subjected to the influence of parol evidence, than if they in fact constituted an entire instrument. — 4 Phill. Ev. 519; Hall v. Adams, 1 Hill, 601.
The very terms of the certificate show, that the object referred to is connected with it on the same piece of paper, and no more extrinsic than the first of several codicils of a will, all written on one sheet, would be extrinsic to those which followed it. The words, “the foregoing instrument,” must be viewed, therefore, simply as words of relation, referring to antecedent matter in the context; and the case is thus brought directly within the rule, that parol evidence is inadmissible to prove to which of two antecedents a given relative was intended to refer. 4 Phill. Ev. (ed. 1850,) 529. Thus, where the testator made dispositions in his will to several persons, among others to his wife and niece, who were the only women mentioned in the will, and then devised “ to her” a particular estate for life, the question was whether parol evidence was admissible to show which of the two was intended. The lord chancellor refused to receive it, on the ground that it woqld tend to put it in the power of witnesses to make wills for testators. — Castleton v. Turner, 3 Atk. 259 ; 1 Jarman on Wills, 361; see Abercrombie v. Abercrombie, 27 Ala. 495. So, declarations of the testator, and other evidence aliunde, are inadmissible, to prove what was intended by an unmeaning or senseless word ; or for the purpose of changing, to any extent, a technical rule of verbal construction; or of reconciling conflicting clauses in a will; or of abridging or increasing the effect of words used; or of proving that a word was used in a popular or secondary sense, when the context shows that it was employed in its primary or technical sense. — 4 Phill. Ev. 529; Wigram Extr. Ev. 70, 139; Lane v. Earl of Stanhope, 6 Term R. 352 ; Field v. Eaton, 1 Lev. Eq. 283; 1 Spence’s Eq. Jur. 566-7-9 ; 2 Phill. Ev. 334-5 ; Doe v. Westlake, 4 B. & Ad. 57; Barlow v. Lambert, 28 Ala. 704. All these are but illustrations of
It being seen that, for the purpose of construing the certificate, all the writings on the same paper with it are to be viewed as oné entire context, it follows that, if upon an examination of all of them, aided by evidence of the circumstances under which the certificate was made, it cannot be told to which of the two deeds it was intended to refer, then this would be a case of patent ambiguity, of that class which is not susceptible of explanation by parol evidence. — Authorities before cited; also, Wigram, 184-5; 21 Wend. 659; Abercrombie v. Abercrombie, 27 Ala. 495; Johnson v. Johnson, 32 Ala. 637.
Even if we were to concede, that the reference in the certificate to “ the foregoing instrument,” is a reference to an extrinsic object, and not to antecedent matter forming part of the same context, the decision of this court when the case was here before would be conclusive against the admissibility of the evidence under consideration. The argument for the appellee is, that the two deeds are objects extrinsic of the certificate, and that the words of the latter being applicable with like legal certainty to both deeds, parol evidence is admissible to show to which one of the two the parties actually intended to refer. In other words, the existence of the two deeds on the same paper with the certificate shows a latent ambiguity, which may be explained by direct evidence of the intention of the parties. But the former decision of this court was made upon the very evidence which, it is now insisted, shows a latent ambiguity; and it was then held, that the words of this certificate were applicable, not to the deed, but to the relinquishment. The court, therefore, in effect decided, that the existence of the two deeds on the same paper with the certificate, which is the only evidence relied on as showing a latent ambiguity in the certificate,
It having been decided when the ease was here before that the words of the certificate did not describe the deed, but did describe the relinquishment, it is clear that parol evidence was inadmissible to prove that the instrument not described was in fact the one to which the parties intended to refer. — 4 Phill. Ev. 529, 571; Bell v. Morse, 6 N. H. 205; Sellwood v. Mildmay, 3 Vesey, Jr. 306; Flournoy v. Mims, 17 Ala. 36.
The court permitted the appellee to show, by the testimony of the justice of the peace, that the last certificate was made under an examination of Mrs. MeBryde which had relation to the joint deed of her husband and herself, and not to the relinquishment of dower by her. This was equivalent to proving by direct evidence to which of the two deeds the certificate was intended to refer, and the court erred in permitting it to be introduced.
But, although the court erred in permitting the appellee to prove, by extrinsic evidence, that it was the intention of the parties that the certificate should refer to the deed, instead of the relinquishment; still, as the matter to be determined was the meaning and application of the words used in the certificate, it was the duty of the court to receive evidence of the condition of things in viewT of the parties at the time it was made. All written instruments tacitly refer to the circumstances in which their authors stand when they make them, and a knowledge of these is ancillary to the right interpretation of the language employed. By receiving evidence which shows the situation of the party, in all his relations, to persons and things around him, the court is, as it were, placed in the position of the person who used the words, and is better able to
The appellee had, therefore, the right to show what was the state of the paper, on which the certificate was written, at the time the certificate was placed there. Such evidence might affect very materially the meaning and application of the words used in the certificate. For, if when the acknowledgment was taken and certified, the deed of McBryde and wife was the only conveyance written upon the paper, it is obvious that the certificate would bo referred to that deed, and not to the relinquishment of dower. Such evidence would show that, when the certificate was made, the deed of McBryde and wife was the only deed in existence, which answered the description furnished by the words “the foregoing instrument,” as used in the certificate; and these words, when read by the light of this fact, would necessarily be held to mean the first deed. This would not be evidence of the intention of the parties, independent of the writing, but of a contemporaneous fact, ancillary to a right interpretation of the words of the writing. — 4 Phill. Ev. 537, 573, 593 ; Haywood v. Perrin, 10 Pick. 228.
Accordingly, the court did not err in refusing to exclude from the jury the answer of the witness Parker to the 7th interrogatory, which tends to show 'that the last certificate was completed before the reliuquishment of dower was written.
In reference to the second proposition above stated, the intimation in Heirs of Holman v. Bank of Norfolk, (supra,) to the effect that the rule referred to does not apply, where the effort is to impeach the witness by the introduction of contradictory statements made by him in some former deposition, is opposed, not only to the decision in Howell v. Reynolds, (supra,) but also to the subsequent case of Powell v. The State, 19 Ala. 577. In the former of the two cases last cited, the court refused to permit a witness, whose deposition had been read on the trial, to be impeached by the introduction of an affidavit, previously made by him, touching the same facts, for the reason that the wdtness had not been examined in reference to the affidavit, And in the other case, (Powell v. The State, supra,) the prisoner, in order to impeach one of the State’s witnesses, offered the written testimony of the witness given before the committing magistrate,as materially different from what he swore on the tidal. This court held, that the evidence was inadmissible, for the reason that the witness had not first been examined, as to the time, place, and circumstances of the previous statement. See, also, Drennen v. Lindsay, 15 Ark. 359 ; 1 Greenl. Ev. §§ 462-3, and notes; Wormley v. Commonwealth, 10 Graft. 658, (688.)
A seeming exception to the general rule has been estab
Judgment reversed, and cause remanded.
The acknowledgment, following the relinquishment of dower, declares itself applicable to “ the foregoing instrument.” The defendant was permitted in the court below to show, by parol evidence, that the deed of McBryde and wife, and not the relinquishment of dower, was the instrument intended to be designated by the words, “foregoing instrument.” The majority of the court decides that the court erred in admitting that evidence, and from the opinion on that point I dissent.
The certificate evidences the statutory acknowledgment of the execution of “ the foregoing instrument.” The subject of the acknowledgment is described by reference
Upon looking at the extrinsic evidence adduced in this case, we find that there are two preceding or foregoing instruments; the deed of McBryde and wife, and the relinquishment of dower by Mrs. McBryde. The latter is the next preceding instrument; and if the certificate had referred to the next foregoing or next preceding instrument, the reference to the relinquishment of dower would have been indisputable, and could not have been controverted without varying the language of the certificate itself. The two instruments alike answer to the reference in the certificate, and either may be held to be the one referred to without varying the import of the certificate. The extrinsic evidence thus bringing to view twro things responding to the reference in the certificate, it becomes the province of the jury to determine, in the light of extrinsic evidence, to which one of the two things reference was actually made. — 2 Phil, on Ev. (ed. of 1859,) 719, note 510. Of this doctrine there are many judicial recognitions and illustrations. Where there w’as a grant
I have conceded, that if the force of the language of the certificate, “foregoing instrument,” were such as to refer only to the next preceding instrument, the evidence that it was intended to apply to the deed of McBrydeand wife would be inadmissible. It is contended, that the decision of this court in this case, as reported in 21 Ala. (296,) adjudges the question of the import of the language adversely to the admissibility of parol evidence, and that that decision forcloses the inquiry as to which was the instrument referred to. When that decision was made, there was no evidence before the court except the papers themselves, and upon that evidence the court was called to pass. The decision is made to rest upon the facts then before the court. The decision of the court was a conclusion inferred from the facts which the record presented to the court for its consideration. The facts then before the court, tending to the conclusion attained, and together producing the conviction announced, were, that the relinquishment of dower was in immediate juxtaposition to the certificate in question ; that there was a different certificate of acknowledgment by Mrs. McBryde, as well as
It was permissible for the defendant to meet and rebut the primafacie case made out by the testimony adduced on the former trial.
The certificates and the deeds are made by different persons, for different purposes, and at different times, and have different objects in view; and, I think, cannot be regarded as comprising one instrument. The certificate, though written on the same paper, is not a part of the sarpe instrument with the deed or the relinquishment of dower; and the foregoing instrument is a matter altogether extrinsic of the certificate, and the phrase, foregoing instrument, is a reference to an extrinsic fact, and presents the case of a latent ambiguity, as defined in the opinion of the majority of the court.
If the deed of McBryde and wife, with the certificate which follows it, and the relinquishment of dower by Mrs. McBryde, with the certificate which comes immediately after it, could all be regarded as composing one instrument, then it would be clear that parol evidence to explain the meaning of the phrase, “foregoing instrument,” would be inadmissible, for the ambiguity would be patent. But I do not regard the justice’s certificates of the'acknowledgment of instruments as parts of those instruments. The instrument is complete before the