
    Gatewood v. Burrus.
    [Wednesday, April 28th, 1802.]
    Deeds — Parol Evidence. — It is a general rule, that parol evidence is not admissible to explain the ambiguities of a debt.
    Same — Same—Exception to Rule. — [He who wishes to avail himself of the exceptions, must shew that his case is within them.]
    James Gatewood, brought ejectment against Burrus, for some lands; and upon the trial of the cause, the plaintiff filed a bill of exceptions, which states, that the plaintiff in support of his title, introduced a deed from the defendant Burrus and one Thompson, as executors of John Burrus, for 230 acres of land in Caroline county, on the south side of Polecat swamp, “bounded by the lines of Philip Estes, the said James Gatewood, William Tinsley, and the above said Polecat Swamp, &c.” That the defendant introduced parol testimony, to explain the said deed; which was objected to by the plaintiff; but the Court, being of opinion that the said parol testimons' was proper to explain what was meant by the . et castera, suffered it to go to the jury. Verdict and judgment *for the defendant ; and Gatewood appealed to this Court.
    Call, for the appellant.
    There is a known distinction between latent and patent ambiguities: for, the first may be explained by parol evidence, but not the latter. A patent ambiguity, is where the uncertainty and ambiguity appears upon the face of the deed: in which case, it is the business of the Court to expound the meaning of the words used ; and, therefore, parol evidence cannot be resorted to for that purpose. But, a latent ambiguity is where the deed is sensible and intelligible of itself; but, there is something, not appearing in the deed, which renders it ambiguous, as where there is a devise to the testator’s son John, who has two sons of that name; in which case, the will is perfect upon the face of it, and either to the sons suing for the legacy, would recover, until it was shewn that there were two of that name: which circumstance would raise the ambiguity, to be explained by parol evidence. [Altham’s Case,] 8 Co. 155, a. Hence, it follows, that parol testimony can never be received to explain the intention; because, that is to be collected from the words: and of the meaning of these, it is the province of the Court to judge. So, that parol evidence is never allowed to explain an ambiguous expression ; for, if it is capable of interpretation, the Judge should do it from the words; and, if it be not intelligible, but is altogether uncertain, the disposition is, so far, void. In the present case, the ambiguity is patent; for, it is in the expression: which, if uncertain, is void, and not the subject of explanation, according to 8 Co.. ubi supra. In short, it may be considered as the general common law principle, that parol evidence is not to be received in explanation of the words of a deed, which are to be construed by the expression itself, and not by evidence. [Meres et al. v. Ansell et al.,] 3 Wils. 275; [Preston v. Merceau, ex’r,] 2 Wm. Black. 1249. To which may be added, that a departure from this rule would destroy the statute of frauds altogether ; and would introduce all the ^Uncertainty which that law was intended to guard against.
    
      E. T. Brooke, contra.
    It is clear, that parol evidence may be received to explain a latent ambiguity, Lord Bacon’s Maxims, 23; and here the ambiguity was latent: for, the et castera is uncertain, and, therefore, should be explained. The evidence was intended merely to explain a boundary, the course of which was latent, and did not appear in the deed. The plaintiff could not have ascertained the extent of his own demand without such evidence; and, therefore, the defendant was clearly. entitled to introduce it; for, the right must be reciprocal. [Maybank v. Brooks,] 1 Bro. C. C. 84; [Eonnerau v. Poyntz, Ibid.] 472. There is a passage in 2 Bac. Abr. 654, which proves that the party may introduce parol evidence to shew that a particular thing was a parcel of that ground; and the same idea is supported in [Doe, dem. ; Freeland v. Burt,] IT. R. 701. So, if there be a deed for 101. and other considerations, those other considerations may be shewn in evidence. The cases cited on the other side, do not apply; for, they were cases of evidence to contradict the deed. The plaintiffs could not even have made a survey of their lands, without the aid of parol evidence, on account of the uncertainty in the description. There was a case in this Court, of Willis and somebody, (Eleming v. Willis, 2 Call 5,) which went much greater lengths than we contended for, as a whole farm was included by the parol evidence.
    Eandolph, in reply.
    The general rule is, that parol evidence cannot be received to explain a deed: And, if this case differed from the ordinary cases so as to entitle the defendant to use the parol evidence, it ought to have been shewn in the bill of exceptions. Claiborne v. Parish, 2 Wash. .146.
    
      
       Deeds — Parol Evidence — Admissibility. — On this question, see the principal case cited in foot-note to Midlothian Coal Mining Co. v. Finney, 18 Gratt. 304; Findley v. Findley, 11 Gratt. 438.
    
   ROANE, Judge.

The counsel for the appellant were mistaken, in supposing that the Court had ^decided, as a general proposition, that parol evidence was admissible to explain a deed; for, the bill of exceptions shews, that the decision was applied to the et castera stated in the deed; and, therefore, it becomes a question, whether a relaxation from the general rule, in this particular instance, be admissible?

If, as was argued by the appellee’s counsel, this et castera had not extended to the conveying part of the deed, but only to that which is descriptive, I will not say but that a different decision might be given. But, he is mistaken in the fact; for, the conveying parts of the deed extended to all the land contemplated in the descriptive part. An attentive perusal of the deed itself, will make this more manifest, than any thing I can say to prove it. The en-quiry is, whether parol evidence be admissible to abridge or enlarge the quantity of land claimed under the deed? It is not material for us to say, whether the plaintiff is entitled to recover on his deed, without an explanation or supplement. He does not come forward with a view to either, himself, but is willing to abide by a construction as upon the deed itself. It is in opposition to that construction, that the evidence in question was exhibited by the defendant.

That evidence tended, either to supply or to explain the deed in a material point. If to supply it, it runs directly in the teeth of the law requiring such agreements to be in writing. If to explain it, it follows, that as the words in question have in themselves no-determinate signification, as applied to the present deed, but only by reference to something else, which is not therein inserted, it may be, that evidence upon this point might contradict the meaning of the words, as construed upon the face of the deed itself.

In so plain a case as this, it is unnecessary to examine minutely, or to quote many authorities. *1 beg leave, however, to refer to the case of Baylis v. The Attorney General, 2 Atk. 239, and Parteriche v. Powlet, 2 Atk. 383, as analogous to the case before us, and supporting my present opinion.

Eor these reasons, I think the judgment of the District Court should be reversed, and a new trial granted, with a direction that the evidence, now under consideration, should not be admitted upon such new trial.

I have looked into the case of Eleming v. Willis, which was mentioned as probably having an influence upon this; but, that case is distinguishable from the case before us. 1st. As being a variance between a marriage settlement and the original agreement ; in which case considerable liberality has been exercised in controlling the settlement by the agreement: and, 2d. Because there, the variance at the time of the settlement being made, was discovered, and would have been rectified, had not the grantor declared that there was no occasion for an alteration, for that the deed was meant to operate according to the contract; and, it would have been sanctioning a fraud, in such a case, not to have adhered to the terms of the original agreement. That case, therefore, has no influence upon the present.

ELEMING, Judge.

The general rule is, that parol evidence cannot be received to explain the ambiguities of a deed or written agreement. There are some few exceptions, as in the case of a latent ambiguity : But, then, the person offering the evidence ought to shew, that his case is withiii the exceptions.

In the present case, the evidence was admitted to explain what was meant by an et .castera in the deed; but, the evidence is not stated in the record, so as to afford the Court an opportunity of determining whether it was admissible or not. For *aught that appears to the contrary, it might have gone to explain away the whole effect of the deed, in opposition to the rule, that where there is an ambiguity, or an uncertain expression in a deed, it shall be construed in favor of him for whose benefit the deed was made. As nothing, therefore, appears to take it out of the influence of the rule which forbids the introduction of parol evidence in general, the rule must be adhered to. Eor these reasons, I am for reversing the judgment and awarding a new trial, at which the defendant will have an opportunity of stating his evidence, so as to enable the Court to decide whether it was admissible or not.

.LYONS, Judge.

The judgment of the Court is to be as follows: “The Court is of opinion, that the said judgment is erroneous in this, that the parol testimony, admitted by the Court to go to the jury to explain the deed in the proceedings mentioned and excepted to, is not fully set forth in the bill of exceptions, as it ought to have been, for this Court to decide on, before the said bill was received or signed, and sealed by the Judges; therefore it is considered, that the said judgment be reversed and annulled, and that the appellant recover against the appellee his costs by him expended in the prosecution of his appeal aforesaid here: And it is ordered, that the jurors’ verdict be set aside, and that a new trial be had between the parties.”  