*[78]

and, indeed, parol evidence may be produced to contradict any inference from such covenant.(i)

*The analogy extends to the case of surety and principal in a bond, though in that case the rule of evidence opens to the admission of proof of conversations between the obligors, at the time of borrowing the money, as indications of a contract between the parties: which evidence, in the case of the mortgage by husband and wife of the wife's estate, we have seen, is excluded by a technical rule of disability.

* [79]

PART VI.

Of the Admissibility of Extrinsic Evidence to prevent FRAUD, i correct MISTAKES, and to protect against the Consequences of Loss or ACCIDENT.

THERE are three branches of doctrine still remaining to be considered, with relation to this intricate learning, which arise principally out of the particular jurisdiction and relief of courts of equity, viz. fraud, accident, and mistake. Fraud is a subject of relief in equity, and a bar at law, to which no solemnities of authentication can be opposed, and the anxiety of our courts of judicature to prevent its success, has, where its existence is the object of proof, made extrinsic and parol evidence admissible. And, indeed, the steps by which the courts have progressively proceeded in subjecting written instruments to the controul of parol evidence, are said to have had their commencement in the cases of fraud.

Though the statute may have increased the jealousy of parol evidence, yet it raises no barrier against its admission, where it professes and tends to support a charge of fraud. The antipathy of the law breaks through all reserves, to accomplish the overthrow of deceitful contrivances. Thus, although evidence to show that by an inadvertent phrase in a will, the testator has made a provision *contrary to his real intention, would probably be rejected; yet, if it extended to prove that the testator had been led into the error by the designing misrepresentations of persons attending his sick bed, the charge of fraud would let in

(i) Evelyn. Evelyn, 2 P. Wms. 665. Lord Kinnoul . Money, 1 Vez. jun. 186. Note MS. by Lord Loughborough.

the evidence proposed. On this principle, the evidence offered in the late case of Small v. Allen,(k) in the court of King's Bench, was admitted, and suffered to prevail. The testator inthat case having already made a will, nevertheless, at the request of some interested persons, consented to make a fresh will, and one being prepared and presented to him for execution, he desired to be informed whether that which he was called upon to execute was the same as the former, and upon being told it was, he subscribed it; but the second will appearing to be materially different from the first, it was set aside upon evidence of these circumstances of imposition upon the testator.

case out of

the statute.

The fraud, however, must in these cases be the alleged Ofthe neces sity of charg ground and object of the parol evidence. In Lord Portmore ving the fraud Morris,() the evidence went to prove that it was part of the in the bill in equity for reagreement for an annuity, that it should be made redeemable, lief in order but such agreement for redemption making no part of the writ- to take the ten contract, the Master of the Rolls observed, that "if fraud had been imputed, the evidence might have been admitted, but that it was dangerous otherwise to depart from the deeds.(m) It might be the intention, that the annuity should be redeemable, but he could only get at it by demolishing one of the foremost rules of law. He would therefore reject the evidence." The case of Hare v. Shearwood,(n) was determined on the same principle. But where fraud is alleged in the bill, and the evidence goes to establish it, the statute of frauds may very properly be put out of the way, since the object of such evidence is not properly to contradict the instrument, but to raise an equity dehors the instrument, *in contravention of a purpose which no law or * [80]

statute will be suffered to assist or protect.

Trusts and provisions have sometimes been added to instru- of giving efments to effectuate the intention of a party, where suppressions fect to the intentions of or omissions have been induced by the fraud or misrepresenta- a party to an instrument, tions of others. As in the case of Hutchins v. Lee,(o) where parol proof of a trust, not expressed in the instrument, was received; and in Barrow v. Greenough,() where a provision of a will was increased by the court upon evidence of the testator's having declined making a new will for adding to the provision, as

(1) 2 Bro. C. R. 219. (m) Vide also Lord Irnham

(4) 8 T. R, 147. . Child, 1 Bro. C. R. 92.

(n) 3 Br. C. R. 168. (0) 1 Atk. 447.

against fraudulent omissions or suppressions by adding trust and provi.

sions.

(p) 3 Vez. jun. 152.

See also Thynn v. Thynn, 1 Vern. 296

it was his intention to have done, upon being promised by his executor and residuary legatee, that his intention should be carried into effect without it; it may indeed be less correct to say, that the trust in the former case was added or supplied to the instrument by the court, than that the general relief given by the court proceeded upon the assumption that it ought to have been added, the court having inferred fraud from the omission, upon parol proof of a contrary intention in the party seeking the relief. In the last-mentioned case, the person circumvented by the fraud was helped out of the assets, which was in effect adding to the will.(34)

But although where fraud is imputed, the court seems to conceive itself bound to admit parol evidence to be read to establish it, yet it will be cautious in listening and giving effect to such evidence, particularly where it is offered offensively, and to set * [81] aside instruments. We observe, that in Hutchins *v. Lee, above cited, wherein a bill was filed, to set aside an assignment of a leasehold estate, upon a suggestion, that the same was never intended as an absolute assignment, but was meant to be subject to a trust for the benefit of the plaintiff, there was an evidence supplied by the context and bearing of the instrument itself, contradicting the intention of an absolute assignment, so that the external evidence received great confirmation from the indications on the face of the deed.

Courts of

equity more reserved in admitting parol evidence to compel a specific per formance, than when

The authority to set aside instruments for fraud used in obtaining them, has furnished a copious head of relief in equity ;(35) but the statute and the rule of law respecting the admissibility of parol evidence, come only properly into question, where an instrument is opposed, on the alleged ground of some fraudulent variation in the written terms, from the intention of the party, and where the court, by the exercise of its peculiar jurisdiction, the purpose would virtually be giving effect to a supposed contract, extrinsic of resisting and contradictory, or suppletory to the instrument itself, and subthe applica tion.

offered for

(34) In Whitton v. Russell, 1 Atk. 448, a similar case, the relief was refused, but the Chancellor observed, that there was no clear fraud, nor did it appear, that the testator was drawn in by any false promises, not to add the legacy to his will.

(35) See the learning collected and arranged on this subject in Mr. Coxe's note to the case of Osmonda Fitzroy, 3 P. Wms. 131.

stantiated only by parol testimony. On which subject the following distinction is always to be observed: where the court is applied to by bill for specific performance, to lend its extraordinary assistance to compel the execution of a contract, existing only in parol agreement, but alleged to have been prevented by fraud from being properly authenticated, or to supply fraudulent omissions, or to rectify mistakes, or to correct variations, or to expunge surreptitious additions, it testifies an uniform reluctance to break in upon the rule and the statute: but though the case must be very strong, which will engage a court of equity in a direct contest with the statute, by coercing the performance of a parol agreement; yet, if a suitor is striving to compel the performance of a written contract, equity will always refuse its discretionary and extraordinary relief, where the justice of the case, *[82] through whatever medium of evidence it is made to appear, is on the side of resistance. A defendant is therefore in a better plight in that court to take advantage of parol testimony than a plaintiff. In the case of Joynes v. Statham,(9) the object of the bill was to carry an agreement into execution for a lease of a house, signed by the defendant only, upon the face of which agreement the plaintiff was to pay a rent of 91.; and it was insisted by the defendant, that it ought to have been inserted in the agreement, that the tenant was to pay the rent clear of taxes, but that the plaintiff, having written the agreement himself, had omitted this part of the contract; and that the defendant, unless this had been the real agreement, would not have sunk the rent from 147. to 97.; to which effect evidence was offered to be read, and admitted by the Chancellor, who introduced his observations with declaring, that it was the constant doctrine of that court to consider it as a matter within its discretion, whether, on such a bill, it would 'decree a specific performance, or leave the plaintiff to his remedy at law. He put the case of a mortgagee bringing a bill to foreclose, where no proviso for redemption was inserted, and the mortgagor was a marksman; and of a mortgage by an absolute conveyance and defeasance, where the defeasance was omitted to be executed by the mortgagee; in both which cases, evidence of the omission by mistake should doubtless be received.

The case of Legal v. Miller,(r) is also illustrative of the same doctrine: an agreement in writing had there been entered into, to (r) 2 Vez. 299.

(g) 3 Atk. 387.

take a house of the defendant at a rent of 321. the landlord undertaking for repairs; but the house having been found too ruinous for repair, the landlord, with the consent of the tenant, pulled it down, and rebuilt it, without any alteration having been made in the written agreement; but the engagement by parol was, that the tenant should add 87. to the rent of 32/. in consideration of the great additional expense sustained by the landlord. [83] A bill having been filed by the tenant to compel a specific performance, on the foot of the written agreement, the parol agreement was set up by the answer, and proved, and the bill was dis-, missed with costs, and with pointed censure from the court.

The case of Walker v. Walker,(s) and others, might be produced, to show that a court of equity, notwithstanding the statute of frauds, will hear parol evidence of the merits and justice of the case, and listen to facts and declarations dehors the deed, before it will stir itself in its extraordinary functions to assist a plaintiff, by compelling the specific performance of a contract: and it seems very right and reasonable, that the whole equity of a transaction should be laid open to examination in every way, and by every shape of evidence, where a party, not content with a compensation in damages, brings his adversary into a court of conscience, for compelling the exact execution of his contract. The language of the court in such cases is-if you want equity to be done, you must show yourself to have done, or to be ready to do all that equity requires of you.

The cases just above commented upon, show the latitude the courts of equity allow to parol evidence, where it is offered on the part of the defendant, to resist an application for a specific performance, especially where it discloses a ground of fraud. That of Woollam v. Hearn,(t) decided by the present Master of the Rolls, (u) illustrates the negative side of the distinction. In this case, Hearn being possessed of a house, under an agreement for a lease for 7, 14, or 21 years, agreed to let the same to Penelope Woollam for 17 years, and a memorandum was signed by both, stating an agreement for a lease from the defendant to the plaintiff for 17 years, at the yearly rent of 731. 108.; the bill was

(s) 2 Atk. 98, and see the Marquis Townsend v. Stangroom, 6 Vez. jun. 328. (†) 7 Vez. jun. 211. (u) Sir William Grant,