
    Trueheart v. Price.
    Saturday, October 5th, 1811.
    a. Sale of Land — Verbal Assurances — Equitable Enforcement. — If the vendor of land, In a town, assure the vendee, (though not In writing,) that a piece of ground, adjoining thereto, is always to be kept open as an alley; by which assurance the vendee is induced to make the purchase, or to give a higher price for the property, a court of equity will perpetually enjoin the vendor from shutting up such alley.
    2. Same — Same — Evidence — Witnesses — Vendee.— Quajre, in such case, whether the vendee, who has afterwards conveyed the premises (with their appurtenances, but without warranty) to a third person, be a competent witness to prove that such verbal assurance was given to himself by the original vendor?
    This was a controversy about a right of way, upon an application by William Price, (purchaser of a tenement in the city of Richmond, which William Duval had bought of Daniel Trueheart,) to the late high court of chancery, for an injunction to prohibit Trueheart from stopping up a twelve feet alley adjoining said tenement.
    The written agreement between Duval and Trueheart, dated July 29, 1789, was, that the latter sold to the former ‘‘a piece of ground extending on the north side of the main street of Richmond, beginning twelve feet below Mr. Galt’s store, and running westwardly, and bounded by the main street forty-four feet, running back *as far as Mr. Galt’s pales next the warehouse.” “It was also agreed that the lower wall intended to be built on the above ground should be in common for the mutual benefit of both; the said True-heart allowing nine inches of ground; the said Duval to be at all the other expense.”
    The deed from Trueheart and wife to Duval, (which bears date the 25th of December, 1794, and was not executed until after the latter had built a brick house on the ground,) said nothing about the twelve feet, but conveyed “a lot or piece of ground, with its appurtenances, lying on the main street in the city of Richmond, it being a part of the tenement called or known by the name of Buchanan’s, forty-four feet in front, and running back ninety-six feet, preserving the breadth of forty-four feet all the way.” A memorandum-was subjoined, “that Trueheart should have the liberty, without cost or hindrance, of joining walls to the house which Duval had built on the above conveyed lot; it being part of the original contract.”
    The bill charged that, at the time when the agreement was made, the said True-heart owned the ground, on the main street, immediately above and below the tenement in question, but had leased the tenement held by William Galt, and called Galt.’s store, for a term of years; that the interval of twelve feet, between Galt’s store and the upper line of the ground agreed to be sold to Duval, was understood by Duval to have been some time before laid off by the said Trueheart, and established as a lane to be in common between the two tenements ; that Trueheart had agreed with the said Galt that, during the continuance of his term, the said vacant space of twelve feet should be used by him as a lane; “and the said Trueheart, at the time of the said agreement, actually informed the said Duval that he had laid off the said space of twelve feet in breadth for a lane, to be always kept open as it then was.”
    *The answer admitted that, during Galt’s lease the twelve feet alley was to be kept open, but positively denied the last-mentioned allegation ; insisting that if such a stipulation had existed, it would have been inserted in the written agreement.
    
      The bill stated farther, that the brick house, erected by Duval, extended the whole length of forty-four feet on the main street, with a separate back building for a kitchen and other offices, and a communication from the said offices to the said lane; there being no other way from the offices to the street, except through the apartment of the mansion-house, which, in general, would be inconvenient, and in some instances impossible to be used; that the said True-heart knew that the said Duval intended to build his house in this way, and frequently saw it while building; that, during this period, he never set up any claim to a separate property in the lane, or made any objection to the said Duval’s having away through it; and he must have known that the said Duval would not have built in the manner he did, but in full confidence that the said lane was always to be kept open. The truth of these allegations was, in a great measure, supported by testimony.
    The deposition of William Duval was taken, and proved the parol agreement of Trueheart that the alley in question should be always kept open: but this deposition was objected to by tne defendant on the ground of his being an interested witness. 
    
    It was proved, however, by the deposition of Isham Bethel, a subscribing witness to the original agreement, that, when he was called upon to attest it, 1 ‘the said *Trueheart and Duval were in conversation, respecting the ground and its situación, which the said Duval had bought of the said Trueheart; .that he, the said Trueheart, observed to said Duval, the alley, running from the main street to Byrd’s warehouse, between William Galt’s store and said Duval’s ground which he had bought of said Trueheart, was to be kept open ; and that he, the said Trueheart, did not in any manner intimate to said Duval that the said alley was ever to be shut up, but gave said Duval every reason to believe the said alley was always to be kept open.” Duval, in his deposition, said that the written agreement was drawn by Trueheart; and that he signed it, without a clause expressing the stipulation that the alley should be kept open, because True-heart assured him that he was bound already to leave the alley, between Galt’s and the deponent’s ground, twelve feet wide.
    From other depositions it appeared that the house occupied by William Galt, which was built by the defendant’s direction, probably cost upwards of 7001. ; that it was not probable that the defendant, when he had it built, could have intended removing it from its present situation, not only considering its size and cost, but the particular manner in which it was built, having two doors and two windows on the side next the alley; that the warehouse called Byrd’s was the property of the defendant; that the alley in question was more generally used by foot passengers to the said warehouse than the street, and much the dryest and best way.
    The cause came on to be heard the 7th of October, 1806, by Chancellor Taylor, who, (‘‘being of opinion that William Duval purchased the ground in the proceedings mentioned, under an express declaration by the defendant, that an alley twelve feet wide was established, and to be always kept open, between the tenement of William Galt and the ground purchased by the said William Duval of the defendant,) adjudged and decreed, *that the defendant be perpetually enjoined from obstructing the way between the tenement occupied by the said Galt and that of the plaintiff;” and that the alley, as laid down in a survey among the proceedings, be established.
    From this decree the defendant appealed.
    Call, for the appellant.
    There was no agreement between Duval and Trueheart that the alley should be kept open. There was no stipulation to that effect in the written agreement. On the contrary, there is a stipulation that Trueheart might join his houses to the walls of Duval’s house. Is not this conclusive that Duval was to be excluded from the use of the lane?
    In opposition to this, parol evidence is offered! to prove a title in Duval to part of Trueheart’s land!
    
    Duval’s own testimony, if admissible, (though I contend it is wholly inadmissible,) operates in our favour. It shows that the very point about the alley was controverted at the time; yet he took a verbal promise, and accepted the deed from the man who refused to commit that promise to writing 1 The story is so strange and improbable, that Mr. Duval must be mistaken in his recollection.
    But his evidence is not admissible. His deed to Price conveys the tenement, with its appurtenances, with warranty. He is, of course, interested; for the privilege of this alley is one of the appurtenances. It is a very dangerous precedent to admit a vendor to be a witness. If he did not convey the alley by his deed, Price has no title to it; if he did, he is an interested witness.
    Williams, for the appellee.
    The agreement itself shows that the parties had it not in contemplation that Trueheart should join his wall to Duval’s house on the upper part. It follows, that neither of them had it in contemplation that Trueheart should build on these twelve feet of ground. We do not contend that Duval was to have *the property in the ground of the alley; but that it was always to-be kept open. To prove this, there is enough in the written agreement itself. If the word “appurtenances,” in the deed from Duval to Price, would convey the alley, surely that word must have the same-effect in the deed from Trueheart to Duval.
    Whether we resort to Duval’s testimony, or not, is unimportant: but he is not an interested witness: he warrants only' the quantity of ground which he had bought, and is a good witness to prove that these twelve feet were always to be a public highway. X suppose it unquestionable that a vendor, not warranting a title, is a competent witness: the objection goes only to the credibility, not the competency.
    The cases cited by Mr. Call do not apply. Our parol evidence does not go to vary the written agreement, but to fortify its obvious meaning.
    Wickham, on the same side. Mr. Call has not paid that attention to fact which he generally pays to law.
    The attempt is only to prove a representation, made at the time of the contract, relating to the situation of the property. Duval did not buy the alley, but only the property adjoining. He had every reason, though, to believe that the alley was to be kept open: if not, it was a deception to his injury. He had only a .right to use the lane, in common with every body else.
    If Trueheart had contemplated building on the upper side of the lot, would he not have stipulated for a right to join walls to the upper side, in the same manner as he stipulated with respect to the lower?
    The stipulation as to the lower side, and the absence of any stipulation as to the upper, (where the lane was,) shows the clear understanding of the parties that the lane was not to be shut up. Would any man reserve twelve feet of .ground for the purpose of building a house? Common sense repels the supposition.
    *Mr. Call contends that the word “walls,” being in the plural number, applies to both sides of- the lot. But surety that word is satisfied by joining the wall of Trueheart’s house, intended to be built,to the wall of Duval’s house, though on one side only; for this, in common parlance, and very properly, is called “joining walls.” As to this point, too, the deed refers to the “original contract,” which shows that the parties did not intend to go beyond that. In all such cases, the deed is controlled by the articles.
    The only object of Trueheart is to levy contributions upon Price; not to build; but to shut up the lane by a fence. This is evident from all the circumstances appearing in evidence.
    Parol evidence is always admissible to prove representations made about the state of the property. The representation here was, that the ground was adjoining a lane; which circumstance added to the value of the property. If Trueheart had not been the vendor, but a third person, who misrepresented the situation of the ground, damages would have been recoverable of him. As he is the vendor, we have a better remedy, viz. to compel him to permit us to enjoy the use of the lane.
    The statute of frauds does not apply where there is part performance: or where one party, by fraud, prevents the other from having a circumstance inserted in the writing, 
    
    This is what is called in equity constructive fraud.
    In tnis case Duval was prevented by Trueheart’s fraud from having the reservation concerning the alley inserted. He had a right to confide in his words when he assured him he was already bound to keep it open. In this respect, his testimony is corroborated by Bethell’s. But he clearly is a competent witness,  Neither, indeed, is he at all interested; for the word “appurtenances” conveys only such peculiar privileges as are annexed to the property; not a general privilege which all the citizens *of the commonwealth have a right to enjoy; such as a public highway. Our application to the court of equity is merely to stop a public nuisance. No action could be framed so as to make Duval responsible to Price.
    Hay, in reply,
    relied on the case of Moon v. Campbell, 1 Munf. 600, as conclusive to show that Duval, being the vendor of the land, could not be examined as a witness to support the title conveyed by himself.
    It is said, however, that if his testimony be left out, there is still one witness, aided by circumstances.
    But Bethell’s deposition does not completely support the bill. It proves merely a reference to a known fact, the existence of an alley, which was to be kept open; but does not ascertain how long. The agreement which he attested was in July, 1789. At that time the alley was to be kept open (under Galt’s contract) until the 1st of October, 1797; that is, more than eight years. Trueheart, therefore, might well have said that it was to be kept open ; meaning during the lease to Galt; but not for ever. The stipulation for the. privilege of joining to the lower wall, was inserted, obviously, because he wanted to build immediately at that place; but he conceived it not important to stipulate for the privilege of joining to the upper wall, because he could not avail himself of that for eight years to come. There was another reason for omitting the last-mentioned stipulation. Galt’s house had not long been built. The twelve feet alley could not be built upon, unless that house was taken down. Trueheart could hardly calculate on such an increase of the value of property, as to make him suppose it his interest to take down that house, and build a new one. But in December, 1794, the case was altered. In two years and nine months Galt’s interest would expire.. New and valuable buildings were daily erected. Trueheart might well calculate, then, that the privilege of joining *to the upper wall would be important. The memorandum annexed to the deed was therefore worded so as to give him the privilege of “joining walls,” plainly meaning to join his buildings to both the upper and lower walls of Duval’s house. Why was this new agreement made if it was not intended to vary the old one?
    The circumstance, that Duval built his house without leaving an alley, is much relied upon. But this was an act of Duval, which cannot affect Trueheart. Besides, houses are often built in this city with no passage to the back yard, but through the cellar. He might have built in that manner, knowing that the alley would be open for eight years, and supposing it would remain so afterwards, unless Trueheart should pull down Galt’s house for the purpose of building a larger one. The communication, too, by the alley was not so very important; since Duval built stores, and not dwelling-houses. But does the mode of his building show that he had the idea of a permanent alley? Is it proved that his house has a door into the alley? -or even a window? Of this there is no proof; neither is it the fact.
    Bothell’s deposition is, therefore, not supported by any circumstance; while those to contradict it are numerous and conclusive. Particularly, if it was distinctly understood that the alley was to be always kept open ; why not say so in the agreement or the deed? If the fact was so, Trueheart had no motive for excluding it; and Duval had a strong motive to insist upon its being inserted; to prevent disputes. Yet he says, himself, that True-heart refused to sign the agreement first written, which contained a stipulation that the alley should be kept open ! He says, too, the existence of the alley enhanced the value of the ground ten dollars per foot; yet he suffered its continuance to depend on chance, and signed the agreement, without any provision binding Trueheart to leave it open.
    But if the fact were proved, the evidence (however ^satisfactory) must be rejected; for a writing was necessary, under the statute of frauds: and, even at common law, parol testimony is not admissible to prove the contract to be different from what it appears to be in the writing,  An attempt is made to repel both of these objections, by saying there was no contract that the alley should be kept open; but a mere representation: which, of course, is not equivalent to a contract. This is, truly, an ingenious device ; according to which the statute will operate on an actual, formal contract, but not on a representation. But the plaintiff’s bill charges a contract; his own witness says there was an express promise; and, if there was not, upon what ground can he claim that the alley should be kept open? Trueheart is the exclusive proprietor of the ground; and if he did not bind himself by a contract to part with it, he cannot be compelled to do so.
    Mr. Wickham, in the next place, (rather inconsistently,) contends there was an agreement, and that, in consequence of a fraud committed by Trueheart, it was not inserted in the writing. But of this pretended fraud there is no proof; and circumstances show that, when the writing was signed, Duval relinquished his claim to the alley, by consenting to the omission of the stipulation which had been inserted in the writing first prepared, and disapproved by. Trueheart. The actual agreement, and nothing else, was reduced to writing.
    
      
       Vance v. waiter, 3 H. & M. 288, Walker’s, Ex’r v. Aicklin, ante; Meres v. Ansel, 3 Wils. 275.
    
    
      
       1 Bac. Abr. 117. 1 Fonb. 173, c. 3, s. 8; 2 Bro. Ch. Rep. 559, Whitchurch v. Bevis.
    
    
      
       Bent v. Baker, 3 T. B. 27; Baring v. Beeder, 1 H. & M. 165.
    
    
      
       3 H. & M. 388, Vance v. Walker.
    
   Friday, October 11. The president delivered the opinion of the court, that the ■decree be affirmed.  