
    Howell Westbrook v. Patrick Harbeson, and Others.
    Parol evidence, when admitted to correct a mistake in a deed. Parol evidence sometimes admitted, on the part of a defendant, to shew a mistake in a deed to prevent the specific execution of it, but never on the part of the complainant to set up a different deed from that which has been executed. The declaration of a magistrate who was dead, that a mistake in a deed was made by him, is inadmissible, being hearsay. The court will not admit parol evidence to show that a renunciation of dower before a magistrate was intended as a release of inheritance. The court will not readily correct mistakes after a lapse of time.
    The bill stated that Patrick Harbeson and Jane his wife conveyed to their son James one hundred and sixty-five acres of land, being; part of a tract of three hundred and sixty-five acres, in the district of Chester, which they claimed by descent from Dougal Ballentine, the father of Jane; and that James, the son of the said Patrick and Jane Harbeson, paid them a valuable consideration* for the piece of land aforesaid. That James had since sold and conveyed to complainant a moiety of the land, which complainant had afterwards sold to one John M’Millan, who was now in possession of the same. That Jane Harbeson lately departed this life; and that her heirs at law were setting- up a claim against the land, on the ground that Jane had only renounced her dower instead of her inheritance. And that John M’Millan, the purchaser, had refused to pay complainant for the land in consequence of such claims on the same. The bill further stated that the said Jane Harbeson intended to convey to her son James an absolute estate in fee simple in the lands; but owing to the ignorance or error of the justice of the quorum before whom she was examined, she relinquished her dower instead of her inheritance. The bill prayed that her heirs, who were the defendants, might be compelled to release their right to the land. It was proved that a valuable consideration was paid by James for the land; and as much as had been offered for it by others. Jane Harbeson, who obtained the land by descent from her father, signed the deed of conveyance with her husband. And the magistrate certifying her renunciation of inheritance on the back of the deed, staled that she had of her own free will and accord, &c., voluntarily released and relinquished to James Harbeson, his heirs and assigns, all her interest and estate, and also all her right and claim of dower to all and singular the premises mentioned in the said deed.
    Chancellor Thompson admitted parol evidence to prove that this was intended as her relinquishment of inheritance, and not merely a renunciation of dower; and that it was occasioned by the ignorance of the magistrate before whom she relinquished the inheritance, *and he being dead, his declarations to that effect were admitted. The chancellor then decreed that the heirs of Jane Plarbeson should make titles to John M’Millan the purchaser, to whom James Harbeson '•had conveyed.
    The defendants appealed from this decree.
    Williams, for the appellants,
    contended that the declarations of the deceased magistrate were not admissible, and that his honor erred in ordering the heirs at law of Jane Harbeson to make titles. Inheritance does not pass by renunciation of dower. 2 Const. Rep. 121. 3 Desaus. Rep. 84.
    A. W. Thompson, contra.
    It will not be denied, that a court of equity will correct a mistake made by a scrivener on a misconception of the intention of the parties. 1 Fonbl. 122. The court will order a new deed of bargain and sale, when the operation of the first has been defeated by not recording it. The court will not supply the non-execution of a power, but will aid a defective execution of it. 1 Madd. Cha. 51. The court will supply the omission of the word “heirs” in an award. 1 Madd. Cha. 67,79. A defective conveyance will be made good against the heirs as well as the ancestor. 1 Madd. Cha. 50. The defect was concealed in the lifetime of Mrs. Harbeson, which was a fraud on the purchaser, as she might have voluntarily perfected the deed. The court has compelled the execution of a power, although two witnesses were necessary. 1 Madd. Cha. 53. The court will compel the husband to procure the wife to carry into effect a contract for the sale of her estate. 1 Madd. 393, 400. Instruments void at law may be sustained in equity. 18 Yes. 423. The court will correct a mistake arising from ignorance of law. An omission by mistake stands on the same ground as that of a mistake* by J fraud. 1 Yes. & Beames, 363. If the mistake arises from intention, accident or fraud, equity will rectify it. 2 Sen. & Lef. 562. 1 Bro. Cha. Ca. 363
    Clenpinen, in reply.
    The case turns on the construction of our own act, which requires that the inheritance shall be renounced in the form prescribed, and unless it is so done and recorded, it is declared absolutely void. Every one is presumed to know the law, and,the law will not presume that there can be any mistake with respect to the lawn You cannot therefore come at the proof, and the court cannot relieve against it.
   Curia, per

Nott, J.

There are two questions for our consideration in this case.

First. Whether any parol evidence ought to have been admitted to contradict, the deed, by shewing a mistake either in law or fact ?

Second. Whether the evidence was sufficient to establish the fact that there was a mistake ?

It will be here remarked, that this is a bill to correct a mistake in a deed, so as to give it a more extended operation than it purports on its face; or rather to establish another in its place, carrying a different and larger estate than the original purports to convey. Its object, therefore, is to violate one of the first and best settled rules of evidence, to wit, “that parol evidence shall never be admitted to contradict, explain or vary a written instrument.” I admit that there are many exceptions to that rule; and that there is great difficulty in reconciling the various cases upon the subject. But among all those conflicting decisions, I am of opinion, that it will be difficult to find one which will authorize the admission of the testimony which has been received in this case. There are many cases where parol evidence has been admitted on the part of a defendant, to shew a *mistake in a deed in order to prevent the specific execution of it; but I am not aware of any, where it has been admitted on the part of the complainant to set up a different deed from the one which has been executed. Phillips, in his treatise on evidence, says; “It does not appear, from any reported case, that the complainant has ever been allowed to give parol evidence, varying a written agreement, on the ground of mistake or surprise.” Phil. 353, 354. In the case of Walker v. Walker, 2 Atk. 100, Lord Hardwicke throws out an intimation, that such evidence might be admitted.

In the case of Joynes v. Statham, 3 Atk. 388, the lord chancellor permitted the defendant, by parol evidence, to disclose a fact, which did not appear on the face of the deed ; and in that case also observed, that if the defendant had been the complainant, and had brought his bill for a specific performance, he did not see but he might be allowed the benefit of the same testimony. Butin the case of Clinan v. Cook, 1 Sch. & Lef. 22, Lord Redesdale referring to those cases remarks, “'there seems to havé been somewhat of a floating idea in the mind of his lordship, that by possibility, a case might be made, in which even a plaintiff might be permitted to shew an omission in a written agreement either by mistake or fraud. However, I can find no decision except the contrary way.” Lord Eldon, in the case of the Marquis of Townsend v. Stangroom, 6 Ves. 328, says, “that those producing evidence of mistake or surprise, either to ratify an agreement, or calling upon the court to refuse a specific performance, undertake a great difficulty ; but it does not follow that such evidence is therefore incompetent.” In the case of Woollam v. Hearn, 7 Ves. 218, the master of the rolls lays down the rule, that parol evidence is never to be admitted to correct a mistake in favor of a plaintiff the performance of an agreement. It is not my intention,* however, to express any opinion on that question at present. And I have referred to those cases, merely for the purpose of shewing- how cautious eminent judges have been in admitting an invasion of that necessary and most salutary rule of evidence. But w-halever the general rule may be, evidence, which is incompetent for any other purpose, ought not to be received, to contradict or vary a deed.

The declaration of the magistrate that the mistake happened through his ignorance, was only hearsay, and ought to have been rejected.

The only remaining evidence of mistake is the testimony of James Harbeson, who bought the land : he says his mother acknowledged that she had sold all her right. But that was nothing more than what she had already acknowledged under her hand and seal. And there she appears to have considered her right to be nothing but a right of dower. That right she was willing to renounce, and did renounce, and nothing more. But a solitary, and at most an equivocal expression of that sort, ought not to have the effect of destroying the legal operation of a solemn deed; and particularly one which the law, through an abundance of caution, has required to be executed with more than ordinary solemnities. It is said that the purchaser paid the full value of the land. But that was a matter in which the wife had nothing to do, and of which she probably had no knowledge. It is also contended that she joined her husband in the conveyance which W'ent to pass her inheritance. But under what circumstances, whether voluntarily or by compulsion or persuasion, we know not. It is only from the official certificate of the magistrate that we are to ascertain that fact. And from that it appears that she was willing to renounce her dower only. And although it furnishes some reason to suppose that she had no very distinct notion of what her right was, it does not authorize* the conclusion that if she had been better informed, she would have been willing to have renounced more. But another view not more favorable to the complainant is, that notwithstanding he had a full knowledge of the fact, he suffered it to remain for twelve years, until the magistrate, the most important witness to prove the fact, if it existed, and the old lady, who alone could correct it, are both dead. And he ought not to be permitted, after such a lapse of time, and after the means of ascertaining the truth has been lost by his own neglect, to deprive these defendants of their inheritance upon such feeble and unsatisfactory evidence. The complainant does not even allege in his bill that he has lately discovered the mistake, but on the contrary he goes back for evidence to prove it, to a period of time which shews manifestly that he did know it; or, what we have a right now to conclude, that he knew the contrary, and would not venture to commence his suit until those witnesses were gone. I am of opinion that the defendant has failed to support his case; and that the decree must be reversed, and the bill dismissed with costs.

Decree reversed 
      
      
         Vide post, the case of Mayo v. Feaster; and the case of Gibson v. Watts, ante, vol. 1, p. 490.
     