| Ala. | Jun 15, 1861
This record presents but a single question. The plaintiff was a negro-trader, living in the State of Georgia. He instituted suit -to recover of' defendant damages for a breach of’warranty of soundness of a slave named Myra. The defendant’s bill oí sale is as follows: Eeceived from Allen C. McGehee six hundred dollars, for negro girl Myra, twelve years old. The right and title of the said girl I do warrant and defend against the claims of all persons whomsoever, and warrant sound and healthy, «both in body and mind; as witness,” &c. Cotemporaneously with the execution of this bill of sale by.defendant, the '.plaintiff executed to him a bill of sale, as follows: “ Received from James Rump a negro girl by the name of Myra, in part payment, and two hundred dollars in money, full .payment for a negro girl Viney, thirteen years old. The right and title of the said slave we do warrant and defend against the claims of all persons whosoever, and warrant -sound and healthy, both in body and mind ; as witness,” &c. Both bills of sale were under seal. The -trade was -made in Macon county, Alabama; and the plaintiff had obtained no license to sell, or to offer said slave-for sale. ’The defense relied on in the court below was, that ¡the bill
There are few questions of evidence on which more has been said, than that which seeks to vary by parol the terms of a written contract ,and we may add, there are few legal questions on which there is a greater conflict of the am thorities. As early as 1823, Ch. J. Tilghman characterized the adjudications on this question as a “ wilderness of cases;” nor has modern jurisprudence blazed a clear path through that wilderness. We will not attempt the task ourselves, further than may be rendered necessary by the wants of this case.
There is no repugnancy of decision on the general proper - sitien, that parol proof, shall not be beard, in a court of law, to vary, enlarge, or diminish the binding obligations of a written contract, as between the parties. In suits on such written contracts, if there be no question of fraud in the execution of the instrument, the parties must stand or fall by the evidence they have furnished of their own contract; and what the terms of that contract are, is a question of law for the court, and not a question of fact for the jury. But, when the question presented is not among the controlling or primary purposes of .the writing, but com cerns an incident, rather than the direct object and aim of the contract, less stringency of rule has generally been enforced. Here commences the conflict of authorities, which,. for the welfare and repose of society, it were well to have reconciled. We think we are in safe, bounds, when we assert that, in the advancing history of .both England and the most of the States of America, we discover a disposi- - tion in the courts rather, to relax the rule, than to make.Ilki more, stringent...
The phrase, to vary the legal effect of the instrument, is certainly not very precise or definite. Deeds usually have a direct effect, which is seen and comprehended as soon as you look upon the instrument;, and they frequently have also an indirect or incidental effect, which is brought to view by proof of some outside or extrinsic fact. Does the principle include both, or only the first named of these classes of cases ? On principle it would seem obvious, that parties to a deed would have in contemplation the effect of the instrument as a transfer, or muniment of title; and hence, to allow parol proof to vary or add to. its provisions or stipulations any term, condition, or fact, which would change either the quality of the title conveyed, or the binding covenants of the grantor, would let in all the mis-chiefs which the rule .under discussion was intended to guard against. — See Murphy v. Br. Bank, 16 Ala. 90" court="Ala." date_filed="1849-01-15" href="https://app.midpage.ai/document/murphy-v-branch-bank-at-mobile-6503992?utm_source=webapp" opinion_id="6503992">16 Ala. 90.
But both principle and authority, as we conceive, pro? claim a different rule, when the proof offered does not tend to change the covenants, or to vary the. title conveyed by the deed, but simply to. repel an .inference to be drawn from some extrinsic fact. Such fact is brought to -the no? tice of the court by extrinsic proof, .in the absence of which, the deed would be amply operative as a contract of bargain and sale. The parties, in drawing their contracts, are not presumed to have had in view these extrinsic facts;' and hence should not he concluded by apparent facts, which, in the absence of the extrinsic fact, have the. same legal-significance as those which the party seeks to prove» .
In the notes 6f Cowen & -Hill to Phillipps on Evidence, 'the principle is thus stated: The American cases regard ’the ordinary clause of a deed of conveyance, acknowledging the receipt of the consideration money, as essential, in connection with its other terms, to express the intention in 'regard to the estate or interest granted or transferred ; and hence, so far, and as betwen the parties or-their privies, it is not open to impeachment, save in equity. But, when "the intention in this respect is not disputed, nor the operation of the conveyance, as such, sought to be changed, the ^clause in question is treated as formal merely, like the date, ■ and may be contradicted or varied by parol.” — Vol. 4, ed. ’ of 1850, @83. In another place the same annotators said, “The English decisions, therefore, whatever may be said ’•of tlicir dicta, do not appear to have gone beyond the point •of disallowing proof to show a consideration of a different • species, so as thereby to change the nature of the deed.” And they instance the case of a deed, which on its face .purported to be a sale for value, and Which- could not operate as such. In such case, the English rule would forbid 'that the deed should be set up as a voluntary conveyance.— Yol. 4, p. 619 ; see, also, ib. 584 — 5.
In McCrea v. Purmort, (16 Wend. 473,) the court of errors of New York, Judge Cowen delivering the opinion, said : “ A party is estopped by bis deed. He is no't'-to be permitted to contradict it; so far as 'the deed is intended to pass a right, or to be the exclusive evidence of a contract, it concludes the parties to it. But the principle ;goes no further.” In that case, it was held, that although. 4he deeds to the lands expressed money paid as the consid-
In the case of Gutty v. Grubbs, (1 J. J. Marshall, 387,) the supreme court of Kentucky, speaking of this question, said: “Receipts, and other writings which only acknowledge the existence of a simple fact, such -as the payment oí money for example, may be susceptible of explanation, and liable to contradiction by witnesses'.” In the sairie ease it was said, that, “whenever a right is vested, or created, or extinguished, by contract or otherwise, and writing is employed for that purpose,--parol testimony is inadmissible to alter or contradict thedegal or common-sense construction of the instrument.” — See, also, Jack v. Dougherty, 3 Watts, 151" court="Pa." date_filed="1834-09-15" href="https://app.midpage.ai/document/jack-v-dougherty-6311316?utm_source=webapp" opinion_id="6311316">3 Watts, 151 ; Gale v. Williamson, 8 Mees. & Welsby, 405; Mildmay’s case, 1 Rep. 176; Belden v. Seymour, 8 Conn. 304" court="Conn." date_filed="1831-06-15" href="https://app.midpage.ai/document/belden-v-seymour-6574453?utm_source=webapp" opinion_id="6574453">8 Conn. 304; Harvey v. Alexander, 1 Rand. 219; Bullard v. Briggs, 7 Pick. 533; Pott v. Todhunter, 2 Coll. Ch. 76; Steele v. Worthington, 1 & 2 Ohio Rep. 350; Bedell's case, 7 Rep. 39; Rex v. Seammonden, 1 T. R. 474; Rockhill v. Spraggs, 9 Ind. 30" court="Ind." date_filed="1857-05-26" href="https://app.midpage.ai/document/rockhill-v-spraggs-7033403?utm_source=webapp" opinion_id="7033403">9 Ind. 30 ; Meeker v. Meeker, 16 Conn. 387; Pritchard v. Brown, 4 N. H. 397; Morse v. Shattuck, ib. 229; Rex v. Lainden, 8 T. R. 376 ; 2 Poth. Ob. 181; Wilkinson v. Scott, 17 Mass. 257" court="Mass." date_filed="1821-09-15" href="https://app.midpage.ai/document/wheeler-v-russell-6404979?utm_source=webapp" opinion_id="6404979">17 Mass. 257; 2 Hill’s Pr. 292 ; Stallworth v. Preslar, 34 Ala. 511; Tyler v. Carleton, 7 Greenl. 175; Burbank v. Gould, 15 Maine, 118; Wallis v. Wallis, 4 Mass. 135" court="Mass." date_filed="1808-03-15" href="https://app.midpage.ai/document/wallis-v-wallis-6403177?utm_source=webapp" opinion_id="6403177">4 Mass. 135; Gale v. Colmer, 18 Pick. 397; Hayden v. Mentzer, 10 Serg. & R. 329.
We have cited and collated this immense array of authorities,-mainly for the-purpose of showing the .spirit of the rule under discussion. Perhaps such elaboration was not necessary in tills case. In the case of Eckhs v. Garter, {26 Ala. 564,-) this court passed on the precise question we are considering, except that the object of the proof in that case was not to repel an illegality, brought to view by extrinsic evidence, but to let in a defense which was otherwise illegal. Much of the reasoning, however, employed
Some of the cases cited above, particularly- those from Maine, Connecticut, and New .Hampshire, carry the doctrine farther than we need go, and farther than we are inclined now t.o commit ourselves. We cite them, however, with others, as showing, conclusively, that the doctrine contended for by appellee is opposed to the weight of authority. That there are authorities opposed to this view, we will not deny... In'some of them, the conflict is more apparent than-real. Many of them state the principle loosely, while most- of them, on a close criticism, may be reconciled with the principle we have announced. We cite them that the profession may examine what has apparently been said on the other side of this question.— Whitlock v. Whitlock, 9 Cow. 270" court="N.Y. Sup. Ct." date_filed="1828-08-15" href="https://app.midpage.ai/document/jackson-ex-dem-van-keuren-v-hoffman-5465139?utm_source=webapp" opinion_id="5465139">9 Cow. 270 ; Garrett v. Stuart, 1 McC. 514; Betts v. Union Bank, 1 H. & Gill, 186 ; Watt v. Grove, 2 Sch. & Lef. 500 ; Bridgman v. Green, 2 Vesey, sr. 627 ; Hinde v. Longworth, 11 Wheaton, 212 ; Jackson v. Delancey, 4 Cow. 427" court="N.Y. Sup. Ct." date_filed="1825-05-15" href="https://app.midpage.ai/document/jackson-ex-rel-howell-v-delancey-5464410?utm_source=webapp" opinion_id="5464410">4 Cow. 427. Most of these cases were marked by strong badges of. fraud, and are therefore within Judge Goldthwaite’s exception, as laid down in Eckles v. Carter.
The following authorities relate to a different principle, and are not in point r Ridgway v. Bowman, 4 Cushing, (Mass.) 271 ; Small v. Quincey, 4 Greenl. 497 ; Coal & Banking Co. v. Ryerson., 3 Dutch. 466-7. See, also, 1 Md. Ch. Dec. 394; 2 Tay. Ev. § 818.
Where a deed to lauds has been executed, reciting that fheiconsideratipn,money has been paid,,.the plain effect cf
So, in this case, the proof made by Mr, Rump — namely, that Sir. McGehee was a negro-trader, without license to sell — did not directly impair'or affect the title which Mr. McGehee had conveyed to him,-or the covenants contained in that title. The influence it exerted was but an incident. The fact proposed to be - proved by the plaintiff .was-also incidental in its character, and should have been admitted.
Reversed and -remanded.