
    Wesley, et al. vs. Thomas, et ux. Adm’x. of Pumphrey.
    Appeal from a decree of the Court of Chancery. The object of the bill filed by the appellees, was to obtain the Surrender and cancelling of a mortgage of some negroes* executed on the 29th of January 1814, by //. Pumplirty, the former husband of the female appellee, to Wesley, one óf the appellants. The case is sufficiently stated in the opinion delivered by this court.
    
      Parol evidence. Independent of ihe statute of iVáuds and pmn fries, is inadmissible to contradict, add to, or vary, the terms of a written agreement.
    The court of chancery, in the exercise of us moral jurisdiction, will, upon the proof of fraud, mis* take or surprise, raise ao equity by which the written -agreement of the parties shall be rectified.
    It is essential however that such fraud, mistake or surprise, should he alleged in, the bill as the* giound and object of the parol proof*
    
      Commissions issued to take testimony, and a number of depositions were returned) and the cause having been submitted for decision,
    Kilty* Chancellor, decreed, that the mortgage should be cancelled, &c. The defendant appealed to this court.
    The cause was argued before Buchanan, Earle, Martin, and Dorsey, J.
    
      Ridonl, for the appellants,
    contended, that the decree !of the chancellor was erroneous: 1. Because parol evidence Cannot be admitted to vary the terras of the deed, and to set up a consideration of a different nature from that stated in it. 2. if parol evidence were admissible, the testimony is insufficient to prove, in opposition to the positive averment of the answer, that the consideration and object of the deed were different from those which appear on its face. 3. Admitting the consideration and design of the deed alleged by the complainants to be established, there is not sufficient evidence that Pf esley is discharged from all liability on account of the judgments which he superseded. He cited Jones vs. Slubey, ante vol. 5, 372. Irnham vs. Child, 1 Bro. Ch. Ca. 92. Portmore vs. Morris, 2 Bro. Ch. Ca. 219. Hare vs. Shearwood, 3 Bro. Ch. Ca. 168. Lord Cheyney’s Case, 5 Coke, 68. Rob. on Frauds, 10, 79. Rich vs. Jackson, 4 Bro. Ch. Ca. 514. Parteriche vs. Powlet, 2 Atk. 384. Shales vs. Barrington, 1 P. Wms. 482. Sugden, 83. Peacock vs. Monk, 1 Ves. 128, Preston vs. Merceau, 2 W. Blk. Rep. 1249. Nicholls vs. Osborn, 2 P. Wms. 420. Clarkson vs. Hanway, 2 P. Wms. 204. Chester vs. Chester, 3 P. Wms. 51. Stevens vs. Cooper, 1 Johns. Ch. Rep. 429. Clinan vs. Cooke, 1 Scho. & Lef. 39. Woollam vs. Hearn, 7 Ves. 218; and Henkle vs. Royal Exchange Assurance Company, 1 Ves. 317.
    
    
      Brice, for the appellees*
    relied on Stevenson vs. Snow, 3 Burr. 1240. 2 Bac. Ab. tit. Evidence, (G) 652, and the cases there cited. Washburn vs. Merrills, 1 Day, 139, 
      Harvey vs. Harvey, 2 Chan. Ca. 180. Harris vs. Bishop of Lincoln, 2 P. Wms. 135. Rutland vs. Rutland, Ibid 210. Gillespie vs. Moon, 2 Johns. Ch. Rep. 585. Elliott vs. Osborn, 1 Harr. & M‘Hen. 146. Gittings vs. Hall, 1 Harr. & Johns. 14. Todd vs. Rivers, 1 Desaus. Ch. Rep. 155. Thomson vs. White, 1 Dall. Rep. 426; and Ross vs. Nowell, 1 Wash. Rep. 14.
    
      Boyle, also for the appellees;
    relied on Coke Litt. 205, (note.) Richards vs. Syms, Barn. Ch. Rep. 90. Powell on Mortg. 187. The King vs. The Inhabitants of Scammonden, 3 T. R. 474. Montacue vs. Maxwell, Prec. in Chan. 526. 1 Stra. 236, S. C. Baker vs. Pritchard, 2 Atk. 389. Lane vs. Dighton, Amb. 409. Exparte Vernon, 2 P. Wms. 549. Boyd vs. M‘Lean, 1 Johns. Ch. Rep. 582. Saund, on Uses & Trusts, 127, 134. Rob. on Frauds, 161; and Thomson vs. White, 1 Dall. Rep. 424.
    
      Ridout, in reply,
    cited Stevens vs. Cooper, 1 Johns. Chan. Rep. 429; and 1 Phill. Evid. 448.
   The opinion of the court was- delivered by

Dorsey, J.

The appellees, John R. Thomas, and CatMrine his wife, died their bill in the court of chancery against Henry Wesley, add others, alleging that Aquila Pumphreyi the former husband of Catharine, the female complainant; being indebted to several persons to the' amount of one hundred dollars, on judgments obtained against him on warrants* applied to the defendant, Wesley, to join as a security in superseding the said judgments* and that Wesley agreed to do So on condition that Pumphrey would give him an indemnity.- The bill then proceeds to state, that the deed of mortgage exhibited with the bill, was executed to secure Wesley against the payment of the said judgments* and for ño' other purpose. It is alleged in the bill, that the judgments were? discharged by Pumphrey* and that the negroes mentioned in the' deed of mortgage remained in the possession of the said Pumphrey, and the complainant, Catharine his administratrix, until three of them were replevied by Wesley.The" bill prays that a writ of ne exeat regno may issue against Wesley, and his securities in the replevin bond, and that the deed may be delivered up to be cancelled. The deed exhibited; with the bill, is executed by Fmn - phrey, and in consideration; of §200 conveys to Wesley, and his executors, four negroes, to be defeasanced on the. payment of §200, to be paid by the bargainor to the bargainee. The defendant, Wresley, by his answer, denies that the deed was executed as an indemnity as alleged by the complainants, but affirms that it was given for the purpose of securing §200 due from Pumphrey to him. A commission, issued, under which evidence was taken by the. complainants, proving that Wesley had in various, conversations acknowledged that the deed was executed for the-purpose stated in,the bill, and that nothing was due to him from Pumphrey._ The late chancellor by Ms decree, ordered that the deed, should be cancelled, and from this decree Wesley has appealed; and this court are of opinion, that the decree of the- chancellor must be reversed, as parol proof was inadmissible-under the pleadings to reform the contract as evidenced, by the deed executed by Pumphrey to Wesley. By the rule of the common law, independent of the statute of frauds and perjuries, parol proof is inadmissible to contradict, add tüj.or, vary tlie terms of a written agreement. This principle is, founded in the wisest policy, it guards the chastity of written, contracts against all interpolations, by considering the.agreement as furnishing the best evidence of the intention of the .parties» ft therefore shuts out all inquiry into parol proof which; can give a different sense to the instrument. It has been judicially said, “that men’s, deeds and wills, by which they, settle their estates, are laws which private men are allowed, to make, and they are not to be altered, even by the king in Ids court of law or conscience,” and the rule, as a general one, is equally applicable to a court of equity. It is most true, that, the court of chancery, in the exercise of its moral jurisdiction as it has been emphatically termed, will upon the proof of fraud, mistake, or surprise, raise an equity, by which tlie agreement of the parties shall be rectified. To cite many cases on this subject would be useless, as fraud and, mistake are acknowledged branches of equitable jurisdiction.. As where on the loan of money, it was proposed that the borrower should give an absoluta deed to be defeasanced by an instrument to be executed by the lender, who refused to give a defeasance after he had got possession of the deed- — Lord Nottingham} after tiro enactment of the statute of frauds and- prejudices, upon., parol proof of the fraud, rectified the deed by considering, it as a mortgage. 1 Eq. Ca. Ab. 20. Filmer vs. Gott, 4 Brown’s Parl. Ca. 230. Sp if a clause of redemption be omitted, through fraud, to be inserted in a deed granting annuity, a court of equity would reform the agreement by parol evidence aliunde. Irnham vs. Child, 1 Brown’s Ch. Rep. 92. The cases in which courts of equity have admitted parol proof for the purpose of rectifying mistakes in written agreements, are numerous. In Simpson vs. Vaughan, 2 Atk. 31, Lord Hardwicke, on the ground of mistake, gave relief by considering a joint bond as a joint and several one; and the same principle is established in Bishop vs. Church, 2 Ves. 101; and Thomas vs. Frazier, 3 Ves. 400 and 401. In Baker vs. Paine, 1 Ves. 457, the Lord Chancellor relieved against a mistake in articles of agreement, and his lordship observed, ‘-‘how can a mistake in, articles of- agreement be proved, but by parol proof. It is not read- to contradict the face of the agreement which the court would not allow, but to prove a mistake therein. ” In , Langley vs. Brown, 2 Atk. 195, Lord Hardwicke says, mistakes and misapprehensions in the drawers of- deeds, are. as much ahead of relief as fraud and imposition. And Lord Eldon, in Townshend vs. Strangroom, 6 Ves. 328, remarks, that it would be very singular if the jurisdiction of the court should not be capable of being applied to cases of mistake and surprise, as well as of fraud.

The court dp not méan to intimate an opinion how far it would-be competent for a complainant, who seeks a specific execution of- a contract, to offer parol1 proof of fraud or mistake for the purpose of proving that the parties intended to give a different, sense to the instrument from that which it imports. On this point Woollam vs. Hearn, 7 Ves. 211, and Higginson vs. Clowes, 15 Ves. 516, may be consulted; But it must be remembered, that although relief can be, had in equity against a deed or contract in writing, founded in fraud or mistake, still it is essentia] that the fraud or, mistake should he alleged in the bill as the ground and object of páro! proof; It is essential, on every principle of correct pleading, that that which gives jurisdiction to the court should be distinctly and substantially alleged. If you call in the aid of a court of equity to relieve against a fraud or mistake, you must aver tliat the contract sought ta be reformed, imports a different sense from that which the patties designed to give it, and that this was the result of fraud or mistake. The complainants should have stated in their bill the real agreement between Pumphrey and Wesley, and that through fraud or mistake the deed imports a contract different from that which the parties had entered into. It is not suiiieient to state that the mortgage deed was giren for the purpose of indemnifying ffesley against his suretyship. For if the parties voluntarily choose to express themselves in the language of the dead, they must be bound by it. From aught that appears on the face of the bill, the morgagor and morgagee did agree, that the deed should be executed in the form that it hears; and to permit them to prove by parol evidence a different intent, from that which they liad delibe.ately and explicitly declared, would be to ¡ rostrate the best established rules of evidence; and under the adoption, of such principles, testimony extrinsic the instrument, would in every case be admissible to substitute a new agreement in the place of the one which had been deliberately executed. See Irnham vs. Child, 1 Bro. Ch. Ca. 93. Simpson vs. Vaughan, 2 Atk. 31.

decree reversed without prejudice.  