
    Lessee of Thomson et ux. v. White.
    
      Parol evidence, when admissible.
    
    Husband and wife, having no children, convey the estate of the wife to A., who reconveys the estate to them, as joint-tenants in fee, under a parol agreement between the husband and ¶ ife, that the husband should settle the fee upon the wife’s heirs; the husband having died without settling the estate, it was held, that parol evidence of this agreement was admissible.
    
    Ejectment for a house and lot in Second street, in the city of Philadelphia. The action was tried by a jury at bar, in January term lfSS, and a verdict given for the plaintiff. A motion was then made, by the defendant’s counsel, for a new trial, which was argued, in favor of the new trial, by •Lewis and Ileatly, and against it, by Lngersoll and Sergeant, in January term 1189 ; and the court having continued the cause under advisement, gave their opinion in the present term.
    The case upon the evidence was as follows : Dorothy Gordon, being seised in fee of the moiety of the premises in question, intermarried *with Laurence Saltar, and having lived long with him, and no prospect of children, she was desirous of making a provision for an only sister of the whole blood, to wit, Mary,' one of the lessors of the plaintiff, whose husband, John, the other lessor, was considerably reduced in his circumstances. It then appeared, that Mrs. Saltar, while upon a visit, with her husband, to his brother, John Saltar, who resided at some distance, was taken sick ; and after a conversation relative to her estate, it was agreed by her husband and herself, that it should be settled on them for their lives, and for the life of the survivor of them, and afterwards, that it should go to her sister, the said Mary Thomson, for life, and the heirs of her body lawfully begotten; and for want of such heirs, to the children of her three sisters of the half-blood. Mr. Saltar, accordingly, procured a deed of the above effect to be drawn by a conveyancer in Philadelphia ; but the second remainder being expressed to be “ for the issue of the bodies of the throe half-sisters,” one of whom was unmarried, Mrs. Saltar, when the instrument was read to her, thought the expression indelicate with respect to her throe half-sisters, and for that reason, persisted in refusing to execute it, notwithstanding all the persuasion of her friends. Upon this refusal, her husband proposed to her, that a deed should be drawn from them to his brother John, who, with his wife, should reconvey the premises to him (the said Laurence) and herself, as joint-tenants, in fee ; and he promised that as soon as he got home, he would make his will, or by some other means, settle the estate in the manner that they had before projected. Mrs. Saltar hesitated at this proposition ; but, on her sister, Elizabeth Saltar’s, telling her, that, “ she might rely upon him ; for, if there was a man in the world, who could be trusted in such a case, it was him ;” and on her husband’s requesting her to comply, declaring, that “ if there was faith or truth in man, he would honestly perform what he again promised she executed the deed to John Saltar, who, with his Avife, reconveyed the estate, according to the previous stipulation. Mrs. Saltar died in the year 1781, about six months after the deeds were signed; and her husband died, intestate and Avithout issue, about eighteen months after her decease. Mr. Laurence Saltar ahvays, during his lifetime, managed the estate that had been his wife’s, as if it belonged to the lessors of the plaintiff ; in his last sickness, indeed, when near expiring, he told his brother, that he was very uneasy on account of his leaving no will; and soon after this declaration, he lost his reason.
    The preceding facts were proved by John Saltar and Elizabeth, his wife; together with the confession of the defendant, that the lessors of the plaintiff had the title in equity, although he had it in law. — There was, indeed, a contradiction, in some respect, of the case of the lessors of the plaintiff, in the testimony of Abel James, who related a conversation which he had with Laurence and Dorothy Saltar, a feAV days before the deeds were executed, *4261 at ti^, *the witness said, that they had agreed to settle the J estate in a different manner.
    The motion for a new trial was made, on two grounds: 1st, Because the parol evidence ought not to have been admitted to go to the jury ; and 2d, Because the jury gave a verdict against evidence.
    
      
       This case went upon the ground of fraud, rfiid is a land-mark in our law, which has been frequently followed. Wolford v. Herrington, 74 Penn. St. 314; Shakswood, C. J. Overton v. Tracey, 14 S. & R. 326, Duncan, J., and cases cited.
    
   The Chief Justice having stated the case, and the objections to the verdict, proceeded to deliver the opinion of the court in the following manner:

McKean, Chief Justice.

The court have heard the reasoning in support of the motion, and the arguments against it; and upon a perusal and full consideration of the cases cited on both sides, our opinion is unanimously formed in favor of the plaintiff.

In support of the first ground assigned for a new trial, it has been urged, that the parol proof contradicted the deed given by the witnesses themselves; that in Pennsylvania, lands must pass by deed, will, or some writing signed by the parties, or by the act and operation of the law ; that a declaration of uses must be by deed; that no parol evidence should be admitted respecting an agreement or deed, which may add to, diminish, vary or contradict the agreement or deed, but only to explain it; and that John Saltar and his Avife were estopped from saying anything against their own deed. In corroboration of these positions, the folloAving books have been cited: Cowp. 47, 260; 2 W. Black. 1250, 335, 327; 2 Atk. 383; 3 Id. 388; 2 Wils. 506; 3 Id. 275; Bac. Max. 90, Regula, 23; 1 Black. Com. 78, 79; 2 Id. 13; 3 Id. 439; Bull. N. P. 357; 5 Bac. Abr. 362; Brown Chan. Cases, 92, 94; 2 Bac. Abr. 309; 1 Wils. III; Fitzgib. 213; 1 Bac. Abr. 75; 1 State Laws, 462-3.

Since the statute of frauds and perjuries, in England, and the act of assembly for j>reventing frauds and perjuries in Pennsylvania, it has, indeed, been a general rule, that no estate or interest in lands shall pass, but by deed, or some instrument in writing, signed by the parties ; and that no parol proof shall be admitted to contradict, add to, diminish, or vary from a deed or writing, But it is certain, that there are several exceptions to this rule, and many cases may be found in which parol proof has been admitted, notwithstanding writings have been signed between the parties. For instance, where a declaration is made before a deed is executed, showing the design with which it was executed, the decisions in the court of chancery, have been grounded upon parol proof ; and in the case of Harvey v. Harvey, 2 Chan. Cases, 180, three successive chancellors decreed, on the parol evidence of a single witness, against a deed of settlement. See Fitzg. 213, 214.

In cases of fraud, and of trusts, though, no trust was declared in writing, exceptions have likewise taken place: Thynn v. Thynn, 1 Vern. 296. As, where an absolute deed was given, but intended to *be in trust; on ^ parol proof of the party’s intention, the trust was decreed. Hamp- <- ton v. Spencer, 2 Vern. 288, et e contra. And the same decision was pronounced, in the case of an agreement or trust being confessed by an answer, although such trust had only been declared by parol. Bellasis v. Compton, Ibid. 294; Croyson v. Banes, Prec. in Chan. 208. So, where a party is drawn in, by assurances and promises, to execute a deed, to enter into a marriage, or to do any other act, and it is stipulated that the treaty or agreement should be reduced into writing ; although this should not be done, the court, if the agreement is executed in part, will give relief. A man treating for the loan of money on a mortgage, it was agreed, that an absolute deed should be. given by the mortgagor, and a deed of defeasance executed by the mortgagee ; the absolute deed being given, the mortgagee refused to execute the defeasance, but the court of chanceiy interposed to enforce justice agreeably to the agreement of the parties. Prec. in Chan. 103-4; Skin. 143; 9 Mod. 88. In another instance, where an absolute conveyance is made for a certain sum of money, and the person to whom it is made receives interest for the money, the receipt of the interest will be admitted to explain the nature of the conveyance. Prec. in Chan. 526; 1 Wils. 620; s. c. 2 Freem. 268, 285.

There are other authorities which bear a strict analogy to the case before us. A copyholder, intending to give the greatest part of his estate to his godson, and the residue to his wife, was persuaded by the latter to nominate her to the whole, declaring that she would give the godson the part designed for him ; after her husband’s death, she refused to perform this promise, and pleaded the statute of frauds and perjuries, but the decree was against her. Again, a father being about to make a will to provide for his younger .children, is prevented by his son and heir apparent’s promising, that he would make the provision for his brothers and sisters ; the son and heir afterwards refused to fulfill this engagement; but, on an application to the chancellor, the decree was also against him. So, where the issue in tail persuades the tenant in tail not o suffer a recovery, in order to provide for younger children, upon an assurance that the tenant in tail would provide for them himself, which he afterwards x’efuses, equity will compel him to do it. Devenish v. Baines, Prec. in Chan. 3; Chamberlaine v. Chamberlaine, 2 Freem. 34.

A voluntary settlemexxt is made by A. to B., who, afterwards, without any consideration, agrees to deliver it up: this agreement shall bind in equity; for a voluntary settlement may be surrendered voluntarily. Wentworth v. Deverging, Prec. in Chan. 69.

The statute and act of assembly were made to px-event/rowfe, as well as perjuries; they should bo construed liberally, and beneficially expounded for the suppression of cheats and wrongs. Thus, whex-e there has been a fraud in gaining a conveyance from another, the grantee may be considered *4281 as a mere trastee. Lloyd v. Spillet, Barnard, in Chan. 388. *In the -* case now under consideration, Mrs. Dorothy Saltar was seised in fee of the premises stated in the ejectment ; and had she made no conveyance, her sister, Maxy Thonxson, would have been her heix--at-law ; but her husband, Avhom she loved, wished to enjoy the estate during his life, and she designed that her sister1, axxd her sister’s children, should have the estate uncontrolled by her husband. With this view, the deeds wex-e executed; and if the solemn px-omise and agreement of Laurence Saltar is'not to be enforced, his heix’-at-law will have the estate, contrary to the intention of all parties.

The question then is, whether the engagement of Saltar, not being in writing, although it concerns lands of inheritance, is void by the act of assembly for preventing frauds and perjuries ?

We are of opinion, that it is not; and that the parol evidence was proper to be admitted upon the trial of the cause, Here was a bx-each of trust in Laux-ence Saltar-, a fraud in law, which is not within the act. This is the reason of our judgment; a reason warranted by a due construction of the act, and an attentive consideration of its frame and design ; which was not only to guard against perjuries, but also, as I have already observed, against frauds. It is to be remembered, that there is no purchaser-, bond fide, for a valuable considex-ation, without notice, in the px-esent case ; the defendant claims under the heir-at-law of Laurence Saltar ; he ought, therefore, to perform what Laurence should have ¡xex-formed; and equity will consider that as done, which ought to have been done; Grounds, &c., of Law and Equity, 75. Every man’s contract (wherever it is possible) should, indeed, be jxei’formed as it was intended.

The numerous cases cited, as well as some determined in this coux’t, both before and since the revolution (several of which are in point) all turn upon the same principle, and are uniformly in favor of the plaintiff ; and so many uniform, solemn decisions, ought to be always of great weight and consideration, that the law may be certain. I am glad, indeed, that the present motion has been made, because it has afforded an opportunity of full deliberation on the subject, and of settling it upon a satisfactory and permanent foundation.

With respect to the second objection, we are clearly of opinion, that the verdict was given agreeable to the weight of the evidence. And upon the whole, direet, that judgment be entered for the plaintiff. 
      
      
         The cases in the Pennsylvania reports, recognising this rule, are very numerous, and sufficiently familiar to the profession. It may he enough to refer to the following, as the leading decisions on the subject. O’Hara v. Hall, 4 Dall. 340; McDermot v. United States Ins. Co., 3 S. & R. 609; Cozens v. Stevenson, 5 Id. 421; McWilliams v. Martin, 12 Id. 259; Wright v. Deklyne, Peters C. C. 204; In Iddings v. Iddings, 7 S. & R. 145, C. J. Tilghman, expressed his inclination rather to narrow than enlarge the Opening for the admission of parol evidence.
     
      
      
         Drum v. Simpson, 6 Binn. 482; Christ v. Deffebach, 1 S. & R. 464; Iddings v. Iddings, 7 Id. 114; McMeen v. Owen, 1 Yeates 135; s. c. 2 Dall. 173; Zantzinger v Ketch, 4 Id. 132; Miller v. Henderson, 10 S. & R. 292, Hayden v. Mentzer, 10 Id. 329; and many other cases to the same effect.
     
      
      
         See Gregory v. Setter, ante, p. 193; and German v. Gabbald, 3 Binn. 302; Wallace v. Duffield, 2 S. & R. 521; Peebles v. Reading, 8 Id. 492.
     