| Vt. | Feb 15, 1845
The opinion of the court was delivered by
This ease was before the Supreme Court, upon a bill of exceptions, in 1843, and most of the questions saved by this bill of exceptions were then disposed of, and are not open to farther
It is now claimed in argument, that there was error in the county court, in rejecting the deposition of Charlea W. W atkins, and that that was proper evidence to explain and give construction to the quitclaim deed from the deponent to the defendant. Bat there was no latent ambiguity, which calls for an explanation by parol ; and, in a case like the present, the intention of the parties must be derived from the instrument itself. It is a principle oí universal application, that, if there is an ambiguity on the face of a written instrument, it cannot be explained by parol. It has also been said, that it should have been admitted as proof upon the issue joined upon the plea to the first count in the declaration. It is to be remarked, that the defendant, in that plea, avers that the demised premises did not come to and vest in the defendant by the assignment thereof, and that he was not possessed thereof, as alleged in the declaration. Issue is joined upon the plea. The fact of the assignment of the leased premises from Charles-W. Watkins to thi3 defendant is the only material part of the issue, ahd that which the plaintiff was only called upon to prove, to entitle himself to a verdict. Clearly, then, it was not error for the- court to exclude evidence on the part of the defendant relating solely to the possession. Had the possession been a material part of the issue, it would have been otherwise; and had the issue been wholly immaterial, by having been joined upon the fact of possession alone in the assignee, the defendant, on the trial of such issue, which the parties had seen fit to join, should probably have been entitled to any testimony, that was proper to disprove the issue.
We think the objection to the admission of the probate records, setting out the widow’s dower in the estate of Elias Watkins, for the want of their being recorded in the town clerk’s office, cannot avail. The object of their admission was simply for a reference to the description there given, and to give locality to the lands specified in the quitclaim deed from Charles W. Watkins to the defend- . ant; and not for the purpose of making out title under the probate proceedings.
It was held, when this case was before us in 1843, that the de
This bill of exceptions presents no new questions, upon which the defendant can succeed in reversing the judgment of the County Court, and the judgment of-that court is affirmed.