Van Evera v. Davis, 51 Iowa 637

Van Evera v. Davis

51 Iowa 637

| Iowa | 1879

Day, J.

i. evidence; gage: paroi to vary. — The plaintiff, being introduced as a witness, was asked the following questions: Q. “State what instructions you and Mr. Duffin, or either of you, in the presence of the other, gave to S. S. Germond as to tile property that should be included in the mortgage?” Q. “State whether or not, at the time the chattel mortgages were written by S. S. Germond, either yourself or Duffin asked said Germond the meaning of the words ‘stock’ and ‘goods’ as used in said mortgages ?” Q. “If the meaning of the words ‘stock’ and ‘goods,’ as used in said mortgages, was explained to yourself and Duffin by Mr. Germond at the time they were written, state what the explanation was.” Q. “At the time said mortgages were executed by Mr. Duffin, do you know what he (Duffin) understood the words ‘stock’ and ‘goods,’ as used in said mortgages, to mean and include? If so, how do you know that, and what did he understand those words to mean and include ? ”

All of these questions were objected to as incompetent and immaterial. The objection was sustained, and plaintiff excepted.

*640The plaintiff thereupon offered to prove by the witness J. R. Yan Evera, plaintiff, that at the time the two chattel mortgages introduced as evidence in this ease in his behalf were executed, both parties thereto instructed S. S. Germond, who wrote the mortgages for them, to include in them all chattel property contained in said Duffin’s drug store in Maquoketa; that after said mortgages were written by said Germond he, Germond, read them both over and explained tp Duffin and plaintiff the meaning of the terms used by him therein, and explained to them that the meaning of the words “stock” and “goods,” as used by him, included ail the chattel property in said store, and that said mortgages were executed by Duffin, the mortgagor, and accepted by plaintiff, the mortgagee, with the mutual understanding that the property conveyed and described therein included all the chattel property in said drug store.

This proposed testimony was objected to as incompetent and immaterial. The objection was sustained, and plaintiff excepted. The plaintiff does not claim that the mortgages in question in terms include the property in controversy. The sole error relied upon is the rejection of the testimony offered by plaintiff as set out above. The plaintiff does not propose to prove that he supposed any words were incorporated in the mortgages which were by mistake omitted. All he proposes to prove is that he and Duffin supposed that the words employed had a signification and meaning different from what is now conceded to be their meaning and import; and he proposes to prove this understanding, not simply as between himself and Duffin, but he asks that an innocent third party, a creditor who has levied an attachment upon the property in question, shall be affected and bound by the unexpressed understanding or intention existing between himself and Duffin. We are satisfied that the proposed testimony was wholly incompetent, and that it was properly rejected. Although some of- the authorities cited by appellant contain the broad statement that the rule inhibiting the production of parol evi*641clence to vary or contradict a valid written instrument does not apply to a controversy between a party to the instrument and a stranger, and that, in such controversy, either party may prove the real agreement, yet none of these eases, we think, contain an adjudication which would render competent the testimony offered in this case. It would, indeed, be a startling doctrine if it should be held that written instruments, deriving all their force and effect from a record pursuant to the statute, could be explained and enlarged by parol proof of the real, though unexpressed, contract, as against one who became a purchaser or acquired a lien, relying upon the terms of the recorded instrument. No case to which we have been referred holds such testimony competent, and we are satisfied that none such can be found.-

The judgment is Affirmed.