| Conn. | Jun 15, 1830
The only question in the case, is, whether the parol evidence offered by the plaintiff, to controul or vary the absolute deed, was admissible.
On a former occasion between the present parties, it was decided, by this Court, that the writing in question was.only a contract, on certain terms, to re-convey the land; and that it did not render the deed a mortgage. Reading v. Weston, 7 Conn. Rep. 143. In the case before us, the parol evidence adduced by the plaintiffs, to prove an absolute deed to be a deed on condition, was entirely inadmissible. No case determined in a court of law proving its admissibility, has been cited ; nor am I aware that any such case exists. On the contrary, in Flint v. Sheldon, 13 Mass. Rep. 443. it was adjudged, that an absolute deed of land cannot be varied, by parol evidence, shewing that it was for the loan and re-payment of a sum of money. This determination is directly in point for the dé-
Undoubtedly, there have been determinations, some of which have been cited, proving that a stranger is not estopped, by a written agreement; but that he may adduce parol testimony to prevent a fraudulent operation of it upon his interests. The King v. Scammonden, 3 Term Rep. 474. New-Berlin v. Norwich, 10 Johns. Rep. 229. 3 Stark. Ev. 1018. 1052. But this principle has no application to the present case. The plaintiffs have not suggested, that there was any fraud contemplated and practised on them. The pretence would have been very strange, unless it were followed up, by explicit testimony to this effect. The inhabitancy of Lucy Darling,prima facie, with property sufficient to purchase a farm of the value of 800 dollars, was a benefit to the plaintiffs, and not a prejudice ; and all our towns would be pleased, in this manner, to extend their population.
It will be observed, that the question before us, is not what a court of chancery may do, in the exercise of its peculiar jurisdiction, but what is the established rule of a court of law. It has been often decided in chancery, that parol evidence is admissible to shew, that an absolute deed was intended as a mortgage, and that a defeasance was omitted through fraud or mistake. Hence, a deed absolute on the face of it, and though registered as a deed, will in chancery be held valid and effectual as a mortgage, as between the parties, if it was intended by them to be merely a security for a debt, although the defeasance was by an agreement resting in parol. Washburn v. Merrills, 1 Day 139. 1 Pow. Mort. 200. Strong & al. v. Stewart, 4 Johns. Chan. Rep. 167. James v. Johnson & al. 6 Johns. Chan. Rep. 417. Maxwell v. Lady Mountacute, Prec.
On the whole, it is incontrovertibly clear, that the decision complained of, is correct, and that a new trial must be denied.
New trial not to be granted,