McElderry v. Shipley, 2 Md. 25

2 Md. 25 | Md. | 1852

Tuck, J,

delivered the opinion of the court.

The object of the present bill is to obtain a decree for the sale of the property therein mentioned, for the purpose of paying a debt, alleged to be due to the appellant, by the defendant Shipley. It is said that this can be effected in one of three modes, either by considering the property as charged with a trust for the benefit of the complainant to the extent of his claim; or, by reforming the mortgage from Shipley to Lister, and his assignment thereof to the appellant, so as to give to them an effect contrary to their apparent intent; or, by foreclosing these instruments, foi the use of the complainant as assignee.

Whatever may be the doctrine elsewhere, as shown by the cases referred to in the argument, we consider the law to be well settled in Maryland, that parol evidence is inadmissible, in a case like the present, to contradict, add to, or vary the terms of a written instrument; and although a court of chancery will, upon proof of fraud, mistake or surprise, raise an equity by which the agreement will be rectified according to the intent of the parties, it will not interfere where^the instrument is such as the parties themselves designed it to be. For if they voluntarily choose to express themselves in the language of the deed they must be bound by it. Wesley vs. Thomas, 6 H. & J., 24. Watkins vs. Stockett, 6 H. & J., 435. Bend vs. Susq. Bridge Co., 6 H. & J., 128. Harwood vs. Jones, 10 G. & John. 404.

The mortgage from Shipley to Lister, professes to secure a debt from the former to the latter, of $1200, and sometime afterwards Lister assigned this mortgage to the complainant, to secure a debt of $936.34, for which, as the assignment states, he had passed his note to the complainant. The amount here mentioned is the precise sum alleged to be due by Shipley to McEldery. These exhibits appear in the record. The bill, as amended, states: “And your orator further avers and charges, that notwithstanding the said assignment of the said leasehold property was made by the said Shipley to said Lister, with the express agreement and understanding between said Lister and Shipley and your orator, at and- "before the execution of the said agreement, that the same was made and given to secure your orator’s claims against said Shipley, as hereinbefore recited, yet the said Lister now fraudulently denies that the same was given upon said agreement and understanding; and with a view to defraud your orator, is attempting to deprive him of the benefit which it was the object of the said assignment to secure to your orator, he, the said Lister, alleging and claiming that said assignment was made and given for his sole use and benefit. Your orator also alleges and charges, that to give to said Lister or to any other person than your orator, the benefit of said assignment, would be a gross fraud upon your orator, and upon the agreement under which said assignment was executed by said Shipley.”

The appellant offers to show, by parol proof, not. that these instruments are not, in terms, what the parties to them intended that they should be at the time they were executed, but that an agreement was entered into by them at and before that time, that Lister should hold the property as a security for the complainant’s claims, and that he fraudulently denies the true character and purpose of the mortgage and assignment 5 and on this allegation of fraud, it is insisted, that equity should grant relief.-

There is no essential difference between this and the case of Watkins and Stockett, where the complainant alleged that a deed absolute in terms, was designed to operate as a mortgage, and that the grantee, in fraud of a parol agreement made cotemporaneously with the deed, refused to recognize it as a mortgage, but claimed the property as his own, against the right of the grantor to redeem. The Court of Appeals said, (it appearing that the deed had been drawn and executed as the parties intended,) that the complainant was ; not entitled to ^hange the character of the deed by parol ; proof. This is not a resulting or implied trust, such as arises ¡ where a party buys land with another’s money, and takes the ; deed to himself. There, upon proof that the purchase money) was furnished by the person claiming the land, the law raises the trust in his behalf, as fully as if it had been declared at the time; here, there is no room for implication. The bill shews that the deed and assignment were drawn and executed according to the intention of the parties. The complainant seeks, not to raise an equity by operation of law, but to set up a conventional trust on the foundation of a special parol agreement, contrary to the provisions of the statute of frauds, which requires that trusts in relation to lands, &c., shall be proved and manifested by some waiting signed by the party who is by law enabled to declare such trust. Dorsey vs. Clark, 4 H. & J., 551. Jones vs. Sluby, 5 H. & J., 372. If it were alleged and proved that Lister had undertaken to procure security for McEldery, by a lien on this property, and that in fraud of this agreement, or by mistake, he had taken the deed to himself, the casé might be within the principle of the Maryland decisions.

If the complainant be regarded as mere assignee of the mortgage, and as claiming as such, he cannot succeed on the present record, because the pleadings do not present his claim in that aspect.

We do not consider the case as within the sixth section of the act of 1832, ch. 302. If the record wrnre remanded, and the bill amended, so as to present a case upon either of the hypotheses suggested in argument, it would, as amended, be so repugnant and inconsistent in its several parts, as perhaps to defeat the complainant’s recovery altogether. Mitfords Pl., 385. Cresy vs. Bevan, 13 Simons, 354. To enable the complainant to proceed de novo, as he may be advised, we shall reverse the decree of the chancellor dismissing the bill, and sign a decree dismissing it without prejudice. The costs to be paid by the appellant. 3 Gill and John., 510. 6 G. & J., 446. 7 Gill, 500.

Decree reversed, and bill dismissed without prejudice.