
    Coutis’s Trustees and Executor v. Craig.
    Wednesday, October 12, 1808.
    Specific Performance — Admissibility of Parol Evidence. — On a bill to compel the specific execution oí a written agreement, if the defendant, in his answer, denies that interpretation thereof which appears obvious according to its words, parol evidence on the part of the complainant, is admissible to explain it.
    Craig instituted a suit in the late High Court of Chancery against Coutts, to compel the specific execution of a contract whereby Coutts agreed to convey to Craig the tenement, in the city of Richmond, then in the occupation of Hicks and Campbell, thus described in the article of agreement: “which tenement contains two stores,the small brick house which Dr. Cringan has his shop in, and a large lumber-house, and the lot of ground extending to Crouch’s line.”
    For the above property, Craig was to pay 1,8001. viz. the houses and lot in Manchester, called “Goode’s tenement,” at the price of 9001. and the residue in bonds to be assigned by Craig on or before a stipulated period. The bill stated the purchase, and boundaries of the averment ; that Craig had always been ready to comply with the contract on his part; had actually delivered the tenement in Manchester, and assigned bonds to Coutts, to nearly the amount of the purchase-money ; bul that Coutts, under various frivolous pretexts. had refused to convey the tenement in Richmond, positively denying that the contract *embraced as much ground as was contended for by Craig. The answer of Coutts moreover alleged, that it was out of the power of Craig to make a good title to Goode’s tenement, in consequence of which, and of the delay which had occurred, he had been deprived of an opportunity of selling it, and thereby had been compelled to submit to great sacrifices of property ; that he never contemplated a sale to Craig of more ground than that on which the houses were erected ; and that even Craig himself, at the time of the contract, did not expect to receive a conveyance for the vacant ground, for which he now contends. Under these circumstances, Coutts relied that a Court of Equity would not decree him to convey the tenement in Richmond to Craig; but expressed a willingness to refund whatever he had received, in part execution of the contract.
    The exhibits filed in the cause, shewed a small balance, due in bonds, from Craig to Coutts ; but it also appeared, that the tenement in Richmond, had previously to the sale to Craig, been incumbered by Coutts with a deed of trust, of which Craig had no notice at the time ; the amount of which, added to the payments already made by Craig, greatly exceeded the original purchase-money.
    A great number of depositions were taken on both sides. On the part of Craig, the deposition of the person who drew the articles, together with several others who were present, or had previously been in treaty for the same properly, proved the boundaries of the tenement to be as contended for by Craig ; and that he was to have the whole lot without any reservation. It was further proved, that Craig was able, and had always been willing, to comply with the contract on his part. On the other side, it was proved that Coutts had made great sacrifices to raise money, which he alleged arose from his not being able to obtain a title for “G-oode’s tenement,” from Craig ; and, moreover, an attempt was made to shew, that the tenement in Richmond, as occupied by Hicks and Campbell, did not comprehend the ground in dispute.
    
      
    
    The annexed figure, as drawn from the testimony in the cause, represents the position of the houses, and the ground in dispute. The exterior of the figure shews the boundaries of the lot, according to the interpretation of the agreement given by Craig.
    An account taken by direction of the Court of Chancery shewed, that after charging Coutts with the money paid by Craig, in relieving the lot from the incumbrance of the deed of trust, Coutts had been overpaid. To this report Coutts filed exceptions. The Chancellor, (the late Mr. Wythe,) recommitting' the report, as to some of the items excepted to ; and, being of opinion that the land in controversy was included in the agreement between Craig and Coutts, and moreover that Craig had paid, “with what the exoneration from a latent incumbrance cost, more than the consideration agreed to be given for the land sold,” decreed a conveyance for the lot, as described in the exterior of the foregoing figure.
    From this decree Coutts appealed ; and the appeal having abated by his death, was revived, by consent, in the names of his trustees and executor.
    The Attorney-General, for the appellant,
    contended, 1st. That parol evidence was inadmissible in this case, inasmuch as it would g-o to contradict the written agreement; and shew that more ground was intended to be conveyed, than appeared from the terms of the agreement itself. *2d. That Craig not having complied strictly with the contract on his part, a Court of Equity ought not to have decreed a specific execution against Coutts. •
    Warden, Call, and Randolph, for the ap-pellee,
    insisted that by the terms of the agreement, Craig was entitled to a conveyance, according to the boundaries contended for by him. The articles embraced a “tenement,” and “lot of ground extending to Crouch’s line.” The word tenement was one of the largest signification ; and nothing would satisfy the term, lot of ground, but a certain quantity forming a parallelogram. It would be monstrous to say that because property on a street was sold nom-inatim, it should not extend back, to include the whole lot.
    The defendant having in his answer, attempted to raise an ambiguity, in the agreement, it was proper, according to a well known rule of law, to introduce parol evidence to explain it. 
    
    That Craig had more than complied with his contract was obvious from the report of the commissioner; and the only question was, how much Coutts would have to refund.
    
      
      See. monosrapbic note on “SpecificPerformance” appended to Hanna v. Wilson, 3 G-ratt. 213, and monographic note on "Evidence” appended to Lee v. Tapscott, 3 Wash. 276.
      The principal case is cited and approved in Reno v. Davis, 4 Hen. &M. 291; Creigh v. Boggs, 19 W. Va. 350.
    
    
      
       Roberts on Stat. of Frauds, 11.
    
   Friday, October 14. The Judges delivered their opinions.

' JUDGE TUCKER.

In this case, I approve entirely of the Chancellor’s decree. The defendant in his answer having positively denied that interpretation of the written agreement, between the plaintiff and himself, which appears obvious upon the face of it, I think the plaintiff was entitled to resort to parol testimony to explain it, according to the intention of the parties, as declared and understood between them, and by the witnesses themselves at the time. That explanation barely confirms the obvious interpretation, and perfectly invalidates the answer, which alone could create a doubt as to the true meaning of the agreement. I am, therefore, of opinion, that the decree be affirmed.

* JUDGE ROANE.

There are only two grounds upon which the appellants’ construction of the agreement can be maintained : 1st. That, in point of fact, there is vacant land lying between the lumber-house and Crouch’s line, which may satisfy this expression in the agreement, “a large lumber-house and the lot of ground extending to Crouch’s line or, 2dly. That, if that expression cannot thus be satisfied, the grant of the land in question, is nevertheless restrained, by the stipulation on the part of Coutts, therein contained, to make a deed “for the lot and houses before mentioned and now in the possession of Hicks and Campbell.” In the first view, testimony must be resorted to, on the part of the appellants, if they would vary the (otherwise) clear construction of the agreement, carrying the land in controversy to the appellee. And, in the second view, the restriction contended for, on the part of the appellant, will be obviated by testimony shewing that, in truth, the land in controversy was at the time in possession of Hicks and Campbell. I am inclined to think that, in both cases, such testimony is proper; not as varying the agreement, as upon its own face, but supplying facts necessary for the understanding of it.

As to the first view ; it is clear, that no land is vacant between the lumber-house and Crouch’s line ; or at least, if any, it is so-extremely minute a slip, as not to satisfy the expression “lot.” I infer, that there isnone ; because by the deed of February, 1793, among the exhibits, Coutts leases to Hicks a piece or parcel of land “adjoining the land of Richard Crouch, containing in front” (on the street leading to the governor’s house) “forty feet, and running back thirty-two feet,” and-ón which Hicks covenants to build a lumber-house of “forty by thirty feet” dimensions.. If, therefore, the house was built according to the terms of the lease, i. e. forty feet long, not an inch of vacant ground could be left: but this is not all. John Hicks tells us, in his deposition, (referring to this lease,) that he undertook ,to build a lumber-house of certain dimensions, “which was erected.” L take it, therefore, to be *clearly established that no vacant land does exist in that quarter, or at least, no piece large enough to be denominated a “lot of ground,” and thus falsify the terms of the agreement. The general expression in the agreement must, therefore, operate in favour of the appellees, unless (in the second view of the case) it be shewn that the land in question, was not in possession of Hicks and Campbell ; thus restraining, by proof, the latitude of the expressions in the agreement : but, on the contrary, we are told by Hicks, that although he did not claim the land in question, by virtue of his lease, yet that he paid a “yearly rent for the back ground and houses he made use of which account is also corroborated by the testimony of Campbell: they, therefore, were in possession of the land in controversy. Both grounds of restriction, therefore, fail the appellants, and the Chancellor’s construction of the agreement is-undoubtedly correct.

I am of opinion that the decree of the Superior Court of Chancery be affirmed.

JUDGE FLEMING.

The principal point in controversy is whether the whole lot of forty-two feet on the main street, and extending the same breadth up to Crouch’s line, was contracted for ? and it seems-clearly to me that it was so, by the written contract itself: but had there been a doubt on the subject, I am of opinion, that, from precedents in this Court, particularly in the case of Flemings v. Willis, parol evidence was admissible' to explain the intention of the parties. It is a very plain case; and I concur in opinion that the decree of the Chancellor be affirmed.

By the whole Court, (absent JUDGE LYONS,) the decree of the Superior Court of Chancery affirmed.  