5 Pa. 403 | Pa. | 1847
Apart from the parol testimony rejected by the court below, (to be presently considered,) there is nothing in the case to show it was the intention of the parties to carry into the deed of conveyance by Christopher to Daniel Zentmyer, all the covenants contained in the articles of agreement of the 11th September, 1815; but if, upon the ground that, through mistake, the deed was not a full and complete execution of the contract of the original parties, we consent to construe the article and deed as one instrument, it is clear the covenant of Daniel to pay, in a particular way, the purchase-money of $6000, was a personal covenant, involving nothing beyond the personal liability of the covenantor. Unlike what are called in the deed, “the reserves,” which were to continue during the lives of the grantor and his wife Barbara, and in Herbaugh v. Zentmyer, 2 Rawle, 159, ascertained to be in the nature of a rent bound upon the land in the hands of the assignor, by virtue of a real covenant, there is nothing in either instrument to indicate any intention that the purchase-money, properly so called, should constitute an encumbrance on the estate granted to David, or in any way qualify it. On the contrary, the express provision of the deed, that the land conveyed should pass, “ subject to the claims” of the Commonwealth, and other reserves mentioned in'the article, negative the existence of such an intent, upon the maxim expressio unius est exclusio alierius. In this respect the case is stronger against the pretensions of the plaintiff than Hepburn v. Snyder, 3 Barr, 72, where the grantee agreed, by the very terms of the conveyance to him, to take the estate subject to the debts, .encumbrances, charges, and responsibilities of the grantor, which, however, was held to amount to but a personal covenant; and it is unlike Bear v. Whisler, 7 Watts, 144, where the estate was conveyed subject to the conditions and obligations contained in the previous articles of agreement, stipulating inter alia, the payment of purchase-money to certain persons at particular times, which was decided to create an estate on condition. The line of distinction drawn by the parties, between the covenant which stipulated an annual rendition of things, issuing out of the land itself, and that which provided for the payment of a sum in gross, has nothing in it unusual, or that ought to subject it to the challenge of doubt, as inexpressive of their understanding of the premises. It is, in itself, perfectly natural and entirely consistent with the mode usually pursued in this state, in such cases, to charge that which partakes of the nature of rent, upon the land itself, by the terms of the conveyance, while the payment of purchase-money in futuro
■ The plaintiff, conceding all that has been said, seeks to avoid it by claiming to reform the articles and deed, considered as one instrument, upon the introduction of parol proof, not that from mistake or fraud any thing was omitted in these instruments, which it was intended to insert, but that, as he avers, the grantor was induced to deliver the conveyance from a misconception of the legal effect of the articles, and perhaps of the deed itself, touching his remedy for enforcing payment of the purchase-money; a misconception originating in the misrepresentation, not of the grantee, but of George Ilarbaugh, one of the present defendants. The court below rejected the evidence offered for this purpose, and whether this was right or wrong is the only question presented by the record, for, if right, the subsequent direction to the jury to find a verdict for the defendant was entirely correct. As an exception to the general rule, parol evidence is, under certain restrictions, admissible to control a written instrument, where either more or less has been expressed than the parties intended, or where one of them, relying upon a misrepresentation of a material fact, by another interested in the transaction, has been induced to do something he otherwise would not have done, and this whether the misrepresentation be wilful or unintentional, if, under the circumstances, it would be unconscionable in the person making it to take advantage of ignorance abused by his own mistake or falsehood. But there are certain conditions essential to the competency of such evidence. Of these, a primary one is, that it must tend to show a misrepresentation, not only in a material fact, but in something in regard to which the one party, of right, places trust and confidence in the other. Ordinarily, it must not be in mere matter of opinion, equally open to both parties for examination, where neither party is presumed to trust the other, though, certainly, even here, under peculiar circumstances of contrivance or abuse of confidence, naturally reposed, equity will relieve; 1 Story’s Eq. 218, § 197.
The rule just stated is peculiarly applicable to opinions hazarded as to the effect of legal documents, where the parties stand on an equal footing, for they are not presumed to be misled where each have equal means of information. It follows, that it is not every misrepresentation that will avoid or control a contract, for if it be of such a nature that he to whom it is made has no right to rely upon it, it is his own folly if he act under a deception; and, as it is
If we test the parol proof offered in the case at bar by the prin
But what right did Harbaugh speak of ? The deed referred to the article so far as this provided for the privileges reserved, and the annual appropriations of things in kind, to be made out of the land itself, and if Harbaugh was aware of the contents of this deed, it is probable, or at least very possible, he referred to this provision in it. His observation might be rendered, without the slightest violation of the language used, “ the deed refers generally to the reserves mentioned at large in the article, as your right in the land, and you have the article to show against the deed.”' But admitting that Harbaugh might have had reference to the balance of purchase-money, and was so understood, still resting in conjecture as it necessarily does, it is too uncertain to work the important effect claimed for it, and were it less so, in this particular, the answer would be, that, so far as appears, it was the mere expression of opinion upon a legal question by a third person, standing in no peculiar relation of confidence to the parties, not asserted by the grantee, nor clearly shown to have been so properly and exclusively acted upon by the grantor, as to call for the interposition of equity to prevent a fraud. Were it, however, possible to admit the proposed testimony to stand, clear of these objections, it cannot be contended that the estate in the hands of the grantee was liable to be radically affected by the uncalled-for interposition of Harbaugh. So far as appears, the former was silent, nor do I perceive any thing in the circumstances attending this transaction that called upon him expressly to negative the supposed error of an opinion casually expressed, especially when it is recollected that this whole subject had been in the contemplation of the parties for upwards of eighteen months, and that they came prepared finally to execute their agreement. In the Bank v. Fordyce, supra, the mere silence of the assignee was held not to be such an assent to a statement made in his presence, as amounted to a contract, and, it seems to me, the same conclusion is inevitable here. This remark acquires additional weight from the reflection that Daniel may have under stood the speaker to have had special reference to the reservations mentioned in the deed, and, if so, the remark would have called for no answer. If, then, the estate in the hands of the grantee was not bound, can it be said that a prior encumbrancer — for such in truth was Harbaugh’s position — who afterwards became a purchaser to save his debt, is to be affected ? Certain it is that since Kauffelt v. Bower, 7 Serg. & Rawle, 64, an encumbrancer posterior to the
It was faintly urged on the argument, that, admitting the testimony of Jacob Zentmyer to have been rightly rejected, yet the plaintiff ought to have been permitted to recover for the non-payment of the annuity or rent, payable to the ancestor during life. But there is no soundness in this notion. The right to receive was personal to Christopher Zentmyer and his wife, and any claim for arrearages survives, if at all, in their personal representatives, to be enforced by personal action, and not to the heirs, to furnish ground for an ejectment. Besides, this point does not appear to have been made in the court below.
Judgment affirmed.