
    The Lessee of Thompson et ux. versus White.
    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, 1788, 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 Heatly, and, against it, by Ingersol and Sergeant, in January term, 1789; 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 seized in fee of the moiety of the premisses in question, intermarried with Laurence Saltar, and, having lived long with him, and no prospect of children, the 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 Thompson, 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 three half sisters,” One of whom was unmarried, Mrs. Saltar, when the instrument was read to her, thought the expression indelicate with respect to her three 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 premisses to him (the said Lawrence) and herself, as jointenants, 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 "the 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;” the executed the deed to John Saltar, who, with his wife, 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, interstate and without issue, about eighteen months after her decease.—Mr. Lawrence Saltar always, during his life time, .managed the estate that had been his wife’s, as if it belonged to the Leffors of the Plaintiff: In his lasl 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 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 inequity, 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 Lawrence and Dorothy Saltar a few days before the deeds were executed, at which time the witness said, that they had agreed to settle the 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, 2dly, Because the Jury gave a verdict against evidence.
   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;

M'Kean, 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 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 wife were estopped from saying any thing against their own deed. In corroboration of these positions, the following books have been cited: Cowp.47. 260. 2 Black, Rep. 1250. 335. 327. 2 Atk. 383. 3 Atk. 388. 2 Wils. 506. 3 Wils. 275. Bac. Man. 90. Regula. 23. 1 Black. Com. 78. 79. 2 Black. Com. 13. 3 Bl. Com. 439. Bull. N. P. 357. 5 Bac. Abr. 362. Brown, Chan. Cafes. 92. 94. 2 Bac. Abr. 309, 1 Wils. 111. 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 preventing 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, shewing 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 proof 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: 1 Vern. 296. Thynn v. Thynn. 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. 2 Vern. 288. Hampton vs. Spencer; 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. Ibid. 294. Bellasis v. Compton. Prec. in Chan. 208. Croyston v Banes. 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 defeazance executed by the mortgagee; the absolute deed being given, the mortgagee retused to execute the defeazance, but the Court of Chancery interposed to inforce justice agreeably to the agreement of the parties. Prec. in Chan. 103. 4. Skinn. 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 the would give the godson the part designed for him: After her husband’s death the 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 fon and heir apparent’s promising that he would make the provision for his brothers and fillers: The son and heir afterwards refused to fulfil this engagement; but, on an application to the Chancellor, the decree was also against him. So, where the issue in tall persuades the tenant in tall not to 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 refuses, equity will compel him to do it. Prec. in Chan. 3. Devinish v. Baines. 2 Freem. 34. Chamberlaine v. Chamberlaine.

A voluntary settlement 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. Prec. in Chan. 69. Wentworth v. Deverginy.

The Statute and Act of Assembly were made to prevent frauds, as well as perjuries; they should be construed liberally, and beneficially expounded for the suppression of cheats and wrongs. Thus, where there has been a fraud in gaining a conveyance from another, the grantee may be considered as a mere trustee. Barnard in Can. 388. Lloyd v. Spillet.

In the case now under consideration, Mrs. Dorothy Saltar was seized in fee of the premises stated in the ejectment; and had the made no conveyance, her sister, Mary Thompson, would have been her heir at law; but her husband, whom the loved, wished to enjoy the estate during his life, and the designed that her sister, and her sister’s children should have the estate uncontrouled by her husband. With this view the deeds were executed; and, if the solemn promise and agreement of Lawrence Saltar is not to be enforced, his heir 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 add 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 breach of trust in Lawrence 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 add, 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 purchasor, bonafide, for a valuable consideration, without notice, in the present cafe; the defendant claims under the heir at law of Lawrence Saltar; he ought, therefore, to perform what Lawrence should have performed; and equity will consider that as done, which ought to have been done; Grounds, of Laws and Equity, 75. Every man’s contract (wherever it is possible) should, indeed, be performed as it was intended.

The numerous cases cited, as well as some determined in this Court, both before and since the Revolution (several of which are in point) all turn upon the same principle, and are uniformly in favour of the Plaintiff: And to 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 agreeably to the weight of the evidence.

And, upon the whole, direct, that judgment be entered for the Plaintiff.  