
    T. G. Buckner, Trustee, vs. H. B. Ruth.
    
      Husiand and Wife — Separation—Evidence.
    A bond payable to a trustee, and, after reciting that the obliger and his wife had agreed to live separate, containing a condition to pay the trustee an annual sum for the use of the wife, held valid.
    Parol evidence to show that a separation had taken place before the bond was made, and that it was given to compromise a suit for alimony, held admissible.
    BEFORE MUNRO, J., AT BEAUFORT, JUNE TERM, 1860.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action of debt on bond, a copy of which must be printed with this report. The defendant, for defence, set up under the plea of ‘non est factum/ and notice under A. A. 1831, 6 Stat. 438 ; that the condition of the bond was immoral: looking to the future separation of ^ husband and wife. I admitted parol testimony to show that there had been a separation, and a suit in equity for alimony, and that this bond was given as a compromise in that suit.
    “I also ruled that the condition of the bond upon its face indicated that the consideration was a separation already made, and that I would so charge the jury.
    “ Whereupon, a verdict for the plaintiff was taken, with leave for defendant to set it aside.”
    The defendant appealed, and now moved this Court for a new trial, on the grounds:
    1. Because the bond on its face contemplated a future separation.
    
      2. Because parol testimony was admitted to explain the consideration.
    COPT BOND.
    The State of South Carolina :
    
      Know all men by these presents, That we, Robert H. Ruth, Howell B. Ruth and Dederick Peterman, are held and firmly bound unto Thaddeus Gr. Buckner, for the use and benefit of Mary E. Ruth, wife of the said Robert H. Ruth, in the full and just sum of twenty-five hundred dollars, to be paid to the said Thaddeus Gr. Buckner, his certain attorney, executors and administrators or assigns, for the use and benefit of the said Mary E. Ruth : to which payment well and truly to be made and done, we bind ourselves, and each and every of us, our and each and every of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated at GHillisonville, the twelfth day of July, in the year of our Lord one thousand eight hundred and fifty-eight, and in eighty-third. year of the Sovereignty and Independence of the United States of America.
    Whereas, it is agreed by and between the said Robert H. Ruth and Mary E. Ruth, his wife, and the said Robert H. Ruth doth by these presents agree to and with the said Mary E. Ruth, that the said Mary E. Ruth shall live separate and apart from the said Robert H. Ruth, without any let, hindrance, or molestation from him, the said Robert H. Ruth, so Jong as she, the said Mary E. Ruth, shall desire so to live separate and apart.
    Now, therefore, the condition of the above obligation is such, that • if the above bound Robert H. Ruth, his heirs, executors and administrators, shall and do well and truly pay unto the above-named Mary E. Ruth, her certain attorney, executors, administrators or assigns, the full and just sum of eighty-five dollars, on the twelfth day of July, which shall be in the year of our Lord one thousand eight hundred and fifty-nine, and the same sum on eaeh succeeding twelfth day of July thereafter, so long as she, the said Mary E. Euth, shall continue to live separate and apart from him, the said Eobert H. Euth, or for and during the natural life of her, the said Mary E. Euth ; provided, she, the said Mary E. Euth, shall so long continue to live separate and apart from him, the said Eobert H. Euth, without fraud or further delay, then the above obligation to be void and of none effect, or else to remain in full force and virtue.
    E. H. EUTH. [l. s.]
    H. B. EUTH. [L. s.]
    D. PETEEMAN. [l. s.]
    Signed, sealed and delivered in the presence of (by Eobert H. Euth and Dederick Peterman,) E. W. Eickling; and by Howell B. Euth, in the presence of-
    
      Hutson, for appellant.
    1. The bond, standing alone, in plain words, is given in consideration of a future separation. There is nothing to indicate that one was already had, and the Judge should, at least, have gone no further than to leave the construction to the jury. It was a question of fact arising out of the words.
    2. The general rule, as laid down by the elementary writers, is, that parol evidence is not admissible to contradict or vary or add to the terms of a deed. 1 Phil, on Ev. 548, 549 ; 1 Grreenl. on Ev. sec. 275, 276, 278.
    It is true, that in Gurry vs. Lyles, 2 Hill, 404, and a series of cases since, it is held that this rule does not extend to the right to show another consideration of the same kind as the one stated, or, at least, not inconsistent with it. Even the dictum in Gurry vs. Lyles (for it is nothing more, the case having been decided on another' ground) is based on the case of The King vs. The Inhabitants of Scammonden, 3 T. R. 474; which case was decided on the authority of Filmer vs. Q-ott, 7 Bro. P. C. 70. But that case clearly went off on the ground of fraud; the consideration stated was “natural love and affection,” and the case was sent to a jury to inquire Whether this was true; that is, whether the donee stood in any such relationship to the donor as to constitute this a legal consideration. A careful examination of all the cases will show that the real ground for receiving parol proof was fraud; this makes the cases no real exception to the general rule. 1
    No fraud is pretended in this case.
    If the bond on its face declares the consideration to be future separation, and parol proof is admitted to prove it was for past separation, it is to let in proof of an inconsistent consideration. The one is a legal, the other an illegal consideration.
    
      Youmans, contra,
    cited Cowp. 343; Chit, on Con. 514, 522, 139 ; 2 Story Eq. 654.
   Per Curiam.

In this case we are entirely satisfied with the ruling of the Judge below, and the verdict of the jury.

The motion for a new trial is therefore dismissed.

O’Neall, C. J., Johnstone, J., and Wardlaw, J., concurring.

Motion refused.  