Crockett v. Green

3 Del. Ch. 466

• Court: Court of Chancery of Delaware
• Decided: September 15, 1870
• Status: Published

Opinion

Ti-ie Chancellor

This is certainly a case of great merit on the part of the complainant, and it would be doing exact justice between the parties to grant the prayer of the bill.

But the Statute of Frauds presents an insuperable bar. The written contract of sale relied upon, fails, in its description of the premises sold, to satisfy the requirements-of the Statute. The defect is such as cannot be supplied by parol evidence, unless there had been a part performance ; and even the admission made by the answer of quite enough to ascertain and locate the premises, cannot avail the complainant. A defendant,-while admitting a contract to have been made as alleged, may plead the Statute none the less effectually, which has been done in this case. These are the general conclusions to which the investigation has led. Let us examine'them more particularly. And, first, is the memorandum on its face sufficiently certain in its description, of the - premises to satisfy the;. Statute ?, It- would be almost impossible,, nor can it be necessary, to review all the cases. bearing upon this question. ,-.The- rule to be. extracted,, from the unquestionable- current.of decisions, touching the- decree, of certainty required’ by this, Statute,, is -very clearly and concisely expressed by C. J. Shaw V '• the , contract,,;or memorandum,” says fhat learned, judge, “must .express, the substance of the contract, with reasonable.certainty,, either by its own terms, or by referencet to some other deed, record, or other matter, from which it can be ascertained witk like reasonable certainty,” Aliyoodvs. Cobb, 16 Pick. , 230. - , - - ,

Technical precision or minute detail is not required, for such contracts are mostly drawn by. unprofessional: persons; they are merely executory,.,and'--the Statute itself, in using the term “memorandum,” must have' contemplated such writings to be wholly informal. Nevertheless, the substance of the contract, — all that is necessary to enable the court to execute it,: such as the subject-matter, the price, and all material stipulations essentially must appear, however informally yeither by the terms of the memorandum, or, as C. J. Shaw’expresses it, “by reference to, some other deed, record,,'or other matter.” The principle material to be here more particularly stated is, that a deficiency in the memorandum as to the terms or subject-matter of the contract cannot be supplied by any extraneous evidence, whether written or parol, unless the extraneous matter be referred to in' the- memorandurn itself, so as, in legal effect, to be incorporated into it. Clinan vs. Cooke, Sch. & Lef., 22, a leading case, affords an apt illustration of the principle. There Cooke had advertised certain premises to be leased for three lives or thirty-one years, with a reference for information to himself and one Meagher, his agent. The plaintiffs, the Clinans, seeing the advertisements, applied to Meagher and a memorandum of agreement for a release was signed. Through oversight the memorandum was defective in not stating the terms for which the lease was to be made. Lord Redesdale (p. 33) held, that parol evidence was inadmissible to connect the memorandum with the advertisement, so as to supply the deficiency, and that only by a reference in the memorandum itself could the two be connected, so as to render the advertisement admissible under the Statute to supply the term of the proposed lease. “If,” he says', “the agreement had referred to the advertisement, I agree parol evidence might have been admitted to shew what was the thing (namely, the advertisement) so referred to; for then it would be an agreement to grant for so much time as was expressed in the advertisement, and then the identity of the advertisement might be proved by parol “ evidence ; but there is no reference whatever to the “ advertisement in this agreement.” The Massachusetts case before referred to, Atwood vs. Cobb, illustrates the application of the same principle where the reference in the memorandum was to matter wholly parol, and not to a collateral writing, like the advertisement in Clinan vs. Cooke. The contract in that case was for the sale of premises which the vendor had previously purchased from the vendee, and the agreement was to re-convey, not for a consideration specified in amount, but expressed thus: “In consideration of the same sum which I paid him for “ the same, with interest from the time when I purchased “the same,” &c. The Court held that the reference in the memorandum to the price which the vendor had paid for the premises in his purchase, opened the way for proof to.shew what that price was, as the consideration for the present sale. The principle now under consideration is well supported by the authorities. The leading ones are Brodie vs. St. Paul, 1 Ves. Jr., 326 ; Clinan vs. Cooke, before cited, in which Lord Redesdale reviews all the prior cases, which, therefore, need not be here cited, and a case, Blagden vs. Bradbear, 12 Ves., 470, following Clinan vs. Cooke. There, Sir William Grant held that the receipt of an auctioneer, being relied on as a memorandum within the statute, but failing to express the price, the defect could not be supplied from the conditions of sale, because the receipt contained no reference to the conditions. “The receipt,” he says, in substantially the language afterwards used by C. J. Shaw, “must contain in itself, or, by reference to something else, must shew what the agreement is.” Precisely the same construction has been given to the Statute of Frauds in this country, as will be sufficiently shewn by the Massachusetts case of Atwood vs. Cobb, 16 Pick. 230, and especially by Parkhurst vs. Van Courtlandt, 1 Johns. Ch. Rep., 273, in which Chancellor Kent, upon a full review of the cases prior to and after Clinan vs. Cooke, and both in law and equity, holds it “as a settled “principle, that if the Court cannot ascertain, with a “reasonable certainty, the terms of the agreement, from “the writing, or from some other paper to which it refers, “the writing does not take the case out of the Statute.” The Chancellor’s decree in this case was reviewed in the Court of Errors, 14 Johns. R., 15 ; but the reversal was upon the ground that the memorandum in question, in that case, was not intended as the contract of sale, but only as a license to take possession preliminary to sale ; that the contract of sale was wholly by parol, and was admissible on the ground of part performance. The rule announced by the Chancellor, as to what is a sufficient memorandum under the Statute, was expressly recognized by the Court of Errors.

We may now proceed, in view of what we have seen the Statute requires, to. examine the memorandum of this sale. It describes the property sold as “two acres and “one hundred and fifty square perches of land, commenc“ing 170 feet from the south side of Green street, running “parallel to Green street, with a front of one acre on “Broad street.” The first step toward locating the lot is to find Green street, and Broad street. The memorandum fails to tell us in what village, town or city, these streets are to be found. Also, on which side of Broad street the lot lies, yet according to the weight of authority, these omissions are fatal, as not matter of description. The terms 170 feet from the south side of Green street, on Broad street, are not so vague, indefinite or insensible, but that they may, with reasonable certainty, be applied to their subject-matters by proof that the defendant actually held land lying upon Broad street, south of Green street, in Middletown, where both the parties resided. Such proof is made under the ninth interrogatory. Evidence of this nature is considered as not supplementing the memorandum, but goes only to the fact that the vendor owned certain property answering the description given, and such proof being of independent facts, and not of statements of the parties, its admission is held not to contravene the policy of the Statute. To this extent many of the cases cited for the complainant sustain him. Such as Ogilvie vs. Foljambe, 3 Mer., 42; where the contract being by letter, the property was described as “ Mr. Ogilvie’s house,” connected with other references, showing that the house intended was the one Mr. Ogilvie then occupied. So, Barry vs. Coombe, 1 Peters S. C. R., 652, where the contract was for “your one-half part E. B. wharf and premises,” a description which was held to be reduced to sufficient certainty by proof that the vendor held a moiety of a wharf property situated upon the Eastern Branch, and that it was known as the Eastern Branch wharf property. So, Gerrish vs. Towne, 3 Gray, 86, where the contract was for “the wharf and'flats occupied by Towne and Hardin, and owned by Francis Head,” without reference to any city or town. In these and other like cases, the description, though general, and; not sufficient, as onitsface, tolocate the premises exactly, was held sufficient for a specific performance, if it might, be reduced to reasonable certainty by extrinsic evidence of facts, touching the situation, use, occupation, or known - designation of the property. Such evidence is held to construe or apply the terms of description used and not to supplement further terms. Where the terms used are , too vague or insensible to be rendered certain by extrinsic; facts, touching the property, so that something further must be incorporated to enable us to locate the premises,then the rule before stated applies that such additional matter cannot- be introduced except by means of a reference to it in the memorandum itself. ■*"

And such, unfortunately, in this case, on another point.' For after we have found Broad Street referred to, arid also" the place of beginning, viz - 170 feet from the south side of Green, on the east side of Broad, it will still remain to trace the boundaries of the two acres and orie'hundred’ and fifty square perches of the land. The testimony' shews, the lot sold was previously.held by Green, not as a separately bounded lot, but as parcel of a larger tract... which he had laid off in squares and streets. What was intended to be sold could not be identified, as is usually done, by an actual separate holding of the premises under lines before established, but it remained yet to be carved out from the main tract which surrounded it, except on the street si.de, and it could be identified only by running new lines. For doing this the memorandum fixes the place of beginning, viz: — 170 feet from Green street but nothing more ; does not enable us to move another step., It gives neither the depth nor front. “A front of one acre-. “ on Broad street,” mentioned in the memorandum means nothing. Here, then, though we are at the place where the lot is to be located, the memorandum affords us no , means by which to do it. If the Court should as it is urged to do, locate" this lot by means of the survey made by Roberts on the day the contract was entered into, July 30th, 180J7, in fhe^ presence of these parties) it will go wholly outside of the written contract and find its subject-matter, not by applying, through extrinsic facts, any terms1 used in it, as1 it rhight ,do, but by evidence entirely extraneous, and thus the Court will execute a contract resting partly in1- writing and partly in parol! Parol evidence can no' '-inore- supply- defects in an'agreement than supply the .entire want of one: Sir Wm. Grant in Blagden vs. Bradbear, 12 Ves., 470; Chancellor Kent in Parkhurst vs. Van Cortlandt, 1 Johns. Ch. R., 281.

-The fatal,defect,.in -this caséis, that the lines.were - hot previously run and incorporated-in, the contract-, or. the:1 depth or front,.of >the„l.o.t-giye-n, .Qr if the metes and bounds were to, be ascertained by a subsequent survey,.that some reference was. no.t,made to, such contemplated survey so as to make ite,results a-part of, the contract, according to the rule before-referred to, as announced by C. J. Shaw, Lord Redesdale, and Chancellor Kent.

I have reád with ca'r.e all-the -cases cited on this point for tHe -complainant. "They are all distinguished from this one by -the fact'thM, in -them, the property sold was held by some previously- established and known boundaries, and that the terms of description- used applies to the premises as so held, such as ,£ Mr. Ogilvie’s House,” being his house and premises as then "occupied, in Ogilvie vs. Foljambe, 3 Mer., 52; “a wharf and premises,” in Barry vs. Combe, 1 Peters S. C. R., 652; “the wharf and flats occupied by Towne and Hardin,” in Gerrish vs. Towne, 3 Gray, 86; “ a tract of land in Southborough known by the name of the Mill Spot,” in Woods vs. Sawin, 4 Pick, 322 ; “ a tenement, in the occupation of Hicks and Campbell, which contains two stores, the small built house which Dr. Cringan has his shop in, and a large lumber house, and the lot of ground extending to Crouch’s line,” Coutts' Trustees vs Craig, 2 Hen. and Mun. 618. In all these, and like cases, it will be observed that there was no question as to boundaries to be newly run, but the premises sold being previously held by known boundaries, the general identification of the premises sufficiently ascertained their boundaries. It was very much insisted that the survey of the lot on Broad Street, made on the same day on which the contract was entered into, and the subsequent declarations of the defendant tending to identity the lot, may be received as cotemporaneous acts, and admissions of the parties, explanatory of their understanding and giving a-construction to the contract. But the rule which admits acts of the parties (I do not find that it includes their declarations) to explain a contract, applies only for the purpose of construing doubtful or ambiguous terms, as the case cited well illustrate. For example, in Cooke vs. Booth, Cowper, 819, there was a lease for three lives, with a provision for its renewal upon the expiration of any one of the lives, and so from time to time, the renewals (as it was expressed) to be under the same rent, and subject to the same covenants contained in the original lease. There were several successive renewals executed under this clause, in all which there was inserted a like covenant for renewal. Finally, the lessor, upon the expiration of a life, and application for another renewal, refused to grant one containing the usual covenant for renewal, and the question was, whether the phrase in the original lease, “ subject to the same covenants,” included or excluded the covenant for renewal. This was a mere question of construction as to the meaning of a phrase in itself ambiguous, and the Court held proof admissible to shew how the parties themselves had construed this phrase, by inserting this covenant in all the prior renewals. So, in Livingston vs. Ten Broeck, 16 Johns. Rep., 14, the case turned upon the construction to be given to a license contained in a deed “for cutting and hewing of timber for building or firewood.” The question was, whether it carried the right to cut for fences. This right having been in fact, conceded and exercised for a series of years, so as to include fences. This usage between the parties was admitted as their own construction of the terms used in granting the license. In all this class of cases, acts of the parties are admitted as evidence only to construe ambiguous words or phrases used in the written instrument, — never to supply the use of terms, or stipulations, or matter of description inadvertently omitted. That is the necessity here, — something by means of which to locate the boundaries of this lot, as to which the memorandum is a blank. I pass now to two special grounds of relief. One of these was the fact that the memorandum was written by the defendant, who, therefore, ought not, in equity, to be admitted to take advantage of its uncertainty. The answer to this is, that the Court is restrained by the positive requirement of the Statute from dealing with these- parties according to the equities of the particular case. The Courts have, it is true, gone so far as to relieve against fraud arising out of part performance of a contract not in writing, but no further. The controlling force of the Statute overall equities arising out of special circumstances,except in cases of part performance, appears in the rule now so well settled, (notwithstanding the doubts of Chancellor Kent in Gillespie vs. Moore, 2 Johns. C. R., 585,) that the Court will not, for the purpose of decreeing a specific performance, reform a written contract in a case of omission through fraud or mistake. This very familiar branch of its jurisdiction, the Court will not exercise when asked to do so for the purpose of a decree for specific performance,becausé that is held to contravene the policy of the Statute. The authorities cited for the complainant, would not sustain a decree in his favor, upon the ground that the defendant wrote the contract. The other special ground for relief insisted upon was, the defendant’s admission by answer that the lot described in the deed tendered to him for execution, was the lot contracted for. The defendant’s answer, frankly admits sill that the bill alleges touching the meaning and object of the contract, and the identity of the lot sold. It insists upon the benefit of the Statute. Now it has long ceased to be a matter of controversy, that a defendant may fully admit the parol contractas alleged, and, at the same time, avail himself of the Statute by insisting upon it. Nor is this privilege limited, as was argued, to the case in which the contract admitted to have been made, rested wholly in parol. It applies as well where the admission respects a contract defectively reduced to writing, as to one not reduced to writing at all. There is no conceivable ground, nor any authority, for the distinction suggested.

I am, therefore, brought to the conclusion that the bill must be dismissed. The effect of the decree will be to work injustice in this particular case, but that is a less evil than to compromise the policy of a wise and beneficial law. I cannot do better than apply here the observations of an able writer, treating of this very statute, “Where,” he says, “integrity is a victim to the “ Statute, it suffers the consequences of its own neglect of “the means thereby provided for its security against “fraud, and of the rational maxim of law, vigilantibus non “ dormientibus leges subveniunt. The principle of law and “government require that particular hardship, and cases “even of transient injustice, must be endured, rather than “that the standing policy of justice should be disturbed. “ A law composed with the design of obstructing the facili“ties for fraud, and removing the temptation to perjury, is “baffled in its general policy by a subjection to rules of a “fluctuating operation ; and the anxiety to take cases out' “ of the Statute is the source of the inconvenience which “has been reproachfully imputed to the Statute itself.” Roberts on Frauds, 151.

Let a decree be entered dismissing the bill, but without allowing costs to the defendant. As he is brought here in consequence of- his own blunder in drawing the memorandum, I think it equitable that he pay, at least, his own costs.

y. H. Rodney, for the complainant.

.1 The expression “a front of one acre,” means such a front as a square acre would make, — The term “ front ” being used antithetically to back and sides— giving 208 9-12 feet. ' . >

.This expression is not unmeaning. It is a phrase susceptible of a meaning which may be shewn by parol evidence. 1 Gr.on Ett., Sec. 29$.'

] Now the evidence afforded by the Surveyor’s notes of survey, under the discretion of the parties,-affords a construction to this phrase in accordance with the above suggestion.

Me. Caulley, for the defendant.

Mr. Rodney’s construction introduces something not there, in order to give sense to a. phrase which has no meaning. A phrase .or expression which is without meaning, as applied to the subject-matter, i. e.a. line, cannot receive a sense by extraneous evidence. It applies to an area, not a line. The attempt is to supply 280-3^-feet.on the front line. That is not in the contract by any expression, or by necessary implication. An acre may be of any shape. How is it assumed that the shape is to be rectangular with a front of one square acre ? Even with such a shape, the front is not fixed. How is-it known that Green had land sufficient to be included in the rectangle ?

Upon application of complainant’s solicitors, after the opinion of the Chancellor was read, but before decree and entered, th.e case .was re-argued.

The parol evidence relied on does not sustain the construction insisted upon, i. e., a rectangle, with the front of a square acre.

G. B. Rodney, for the complainant — in reply.

1. In the language of surveying, “an acre of land” means an acre by square measure. Therefore, even without evidence, a “front of an acre” might be construed a front of a square acre.

2. Even were it not so, it is still open to shew what the parties meant by it — which is done by the survey directed by themselves. Sugden on Vend. Ch. 1, Sec, 4.

Besides, it may be shewn that the phrase has, by local use, the sense attributed to it.

If it be considered that the local zcsage of a word or phrase must be proved as a fact, and that, on that point, there is no evidence, the Chancellor may yet satisfy himself by ordinary proof, this being the only point of objection to relief.

The Chancellor :—

I have considered with care, and, so far as I can know myself, with candor, the views presented, upon 'the re-argument, by the complainant’s counsel, of the point on which the opinion heretofore announced, rested, viz; the failure of the written contract sufficiently to locate the bounds of the lot intended to be sold. The rule of law which has been applied to the case is not questioned, that is, that the description of the premises, like all the essentials of a contract, must, under the Statute of Frauds, be ascertained with reasonable certainty, either by the language of the written contract, or by some writing or other matter referred to in it.

Parol evidence, to a considerable extent and variety, is admissible in aid of written contracts ; but it is admissible only for the purpose of interpreting the meaning of words or expressions used in the writing, and not, in any case, to supply a deficiency of expression. And this restriction would seem to apply more stringently to cases in which the contract, or instrument, is one required by statute to be in writing, than to those which may be good without writing.

Now the argument, conceding these principles, claims that there are, on this memorandum, expressions which, even if not sufficient, taken by themselves, are yet so explained by the evidence as to ascertain the boundaries of the lot. A “front of one aeré;” is an expression relied on as fixing the length of the front line ; the running parallel of Green street, applied to the lot as a whole, is supposed to ascertain its shape to be a paralellogram; and thus the length of the front line and direction of the sides being found, the quantity sold, i. e., one acre and 150 square perches, would locate the back line. The whole of this argument rests upon the assumption that “front of one acre” means a line of such length as equals one side of a square acre. Does it then appear, — not conjecturally, — not as an inference from the impossibility of giving any other sense to these words, but does it appear with that reasonable certainty which the policy of the Statute requires, that such is the sense of these words? Now, in answer to that question, we observe,first, that this phrase, “front of one acre,” has no proper application to a line, and has not a natural or generally acknowledged and received sense, such as is here claimed for it. Again, although it is unquestionably true, that the words may have such a sense by usage, either local or among surveyors, as a class, still such usage has not been proved, as it must be when relied on to interpret a written instrument; nor can the Court, as was suggested by the senior counsel for the complainant, now, after a hearing, admit evidence of usage, even were an application made, because no satisfactory reason could be assigned for the omission to take such proof at the proper stage of the cause. Then we are brought to the precise point chiefly relied on, viz : that the survey, which is in evidence, may be taken as a cotemporaneous exposition, by the parties, of the sense in which they used the terms “front of an “ acre,”&c.

To give to the survey the effect here desired, would solve the difficulty, and, probably, effectuate the real purpose of the parties. But to do so, would violate a settled rule of law, viz: that parol evidence of the intention of parties in the particular transaction, cannot be admitted to give a construction to the words of a written instrument; in no case to vary or control the sense of plain and unambiguous words, and not to explain doubtful or ambiguous words in those written instruments which are required by statute or by the nature of the transaction, as the only evidence of the transaction. Let us examine this point, carefully.

First, it must be observed that the proposed use of this survey has no direct bearing upon the sense of these words, “ front of an acre, ” like the effect of the ordinary, recognized words of interpreting words by ascertaining in what sense they have been used, either locally, or in some act, science or trade to which they relate, or even by the parties themselves in prior transactions, so that having, by such means, ascertained the sense of the words, the Court can read in them the intention of the parties without any extrinsic proof of that intention. But the attempt is to reverse this, the legitimate mode of interpretation ; it is first to prove by the survey, as a part of the res gestae, independently of any words in the contract, what land was intended to be sold, and then to construe the words in question, so as to give effect to that ascertained intention, so that instead of drawing the intention of the parties in the transaction from the sense of the written words, which was what the Statute sought to secure, the sense of the words is to be drawn from parol proof of the intention of the parties, which is, in effect, to establish the contract upon mere parol proof, the very mischief against which the Statute was designed. The effect, in this respect, is precisely the same, whether the intention is sought to be gathered from the acts, or from the declarations of the parties as to what they intended; and yet, I apprehend, it was never attempted to construe the words of a written instrument, by proof of declarations or admissions-by the parties, as to their real intention in the transaction.

Taking such to be the real effect of the survey as sought to be used, it is encountered by the rule that parol evidence of the actual intention of parties cannot control or influence the construction of written instruments.

I-n no case can such parol evidence contradictor vary the clear sense of written words; whether they are admissible to explain a doubtful or ambiguous sense(which is the case with these words) may depend upon these circumstances. If the transaction to which the writing relates, be such as might be proved by parol, not being required to be in writing, parol proof of intention might be deemed admissible, merely to explain the sense of doubtful words, not contradicting 'the-written evidence adopted by the parties, nor violating any statute prohibition against parol evidence of the transaction. It is only on this ground that the case of Gray vs. Harper, 1 Sto. R., 594, and others like it, can stand, when under a contract .for a purchase of a certain work at cost, a contract which might have been wholly by parol, conversations of the parties were admitted to explain what sense they attached to the word “ cost.” Spicer vs. Cooper, 1 G. and D. 52, and Selden vs. Williams, 9 Watts, are cited as similar cases. 1 Gr. on Ev. § 281, n 5, p. 383, n. 1. But where, by statute or by the nature of the transaction, a written instrument is required, parol evidence of intention is wholly inadmissible, not only to contradict or vary, but equally inadmissible to explain or remove obscurity, or in any way to influence the construction of words. One exception only to this remark is stated by C. B. Abinger in Doe vs. Hiscocks, 5 M. and W. 367-8, where, speaking on this point, he says: “Now there is but one case in which it appears to us that this sort of evidence of intention can properly be admitted, and that is, where the meaning of the testator’s words is neither ambiguous nor obscure, and where the devise is, on the face of it, perfect and intelligible,. but from some of the circumstances admitted in proof, an ambiguity arises, as to which of the two things, or which of the two or more persons feach answering the words in the will) the testator intended to express.

Subject to the exception stated byC. B. Abinger, it is the rule that, where writing is required as evidence of intention, doubtful words in it cannot be solved by parol proof of the actual intention, 1 Jarm. on Wills, states this as a broad and clear rule in the case of wills; excluding parol evidence either to “contradict, add to or explain” (j>. 349.) or “for the purpose of controlling or influencing,” (p. 358). It is supported by many authorities upon wills. An early one was Strode vs. Lady Falkland, 3 Ch. Rep., 98, where the question being, whether the words of a devise “all other my lands, tenements and hereditaments “out of settlement” should include a reversion, it was unanimously agreed by Lord ' Chancellor Cowper, the Lord Chief Justice, and the Master of the Rolls, that evidence to prove the intention to include such reversion was inadmissible, “for that where a will was doubtful and “uncertain, it must receive its construction from the “words of the will itself; and no parol proof or declaration ought to be admitted out of the will to ascertain it.” In a modern case, Doe vs. Hiscocks, before cited, in an elaborate opinion by C. B. Abinger, the same rule was held, excluding all parol proof of ifttention when, adduced, as he expresses it, “either to supply some deficiency, or “remove some obscurity, or to give some effect to expressions that are unmeaning or ambiguous.” And he puts the broad exclusion upon the requirement that a will should be in writing. “It appears to us,” he says, “that “in all other cases”(that is, except the one case before put of what Lord Bacon calls “an equivocation,”) “parol “evidence of what was the intestate's intention, ought to “ be excluded, upon the plain ground that his. will ought “tobe made in writing ; and if his intention cannot be made “ to appear by the writing, explained by circtmstances, “there is no will. ” It need hardly be said that the same principles must apply to contracts for the sale of lands, since these, like wills, are required by statute to be in writing. They must, upon the like reason, apply to. all cases in which, either by statute, or from the nature of the transaction, the written instrument is required; as to wills, deeds, mortgages or contracts respecting lands.

It is not meant that words may not be construed or applied by means ’of extrinsic evidence ; but that such evidence must not be proof of intention in the particular transaction. The extrinsic evidence, admissible in aid of written instruments, is of certain, well-defined sorts, and may be reduced to two general classes, depending upon the object for which extrinsic evidence is needed. The object is two-fold. It may be to apply terms plain and unambiguous on their face to their subject-matter, or for the purpose of identifying the person or thing to which they relate. For such a purpose, considerable scope is allowed in proving the situation or qualities of the thing mentioned in the instrument, the fact that a party holds certain property, and the manner of holding it, in the case of a testator, the condition of the family and affairs, of his property or business, and all the circumstances in which a testator, or any party to an instrument, was placed. 2 Phillips, on Ev., 292- 3. The other object for which extrinsic evidence may be needed, is to interpret the instrument on its face, the necessity arising out of the fact that its language is foreign, or that terms are employed which are doubtful, ambiguous or technical. In such cases, the appropriate modes of interpretation are, such as translations, if the language be foreign ; or proof of usage to explain the sense of idiomatic or provincial expressions, or ancient words, or terms of art, science or trade ; or it may be proof of the manner in which the parties have, in other like transactions, employed the same terms. It has been the disposition of the courts in all well considered cases, not to go beyond these appropriate and recognized modes of interpreting and applying written instruments A marked example of this is the case of Lady Hewley’s charities, Atty. Gen. vs. Shore, 11 Sim., 592, in which the admission of extrinsic evidence to assist written instruments, was largely examined by the twelve Judges of England, who were called to assist the House of Lords in that case. Then the Judges refused to admit evidence drawn from the known opinions of the founder of a charity, upon subjects to which the charity related, to aid in the construction of words defining the objects. The devise was for the benefit of “poor and godly preachers of Christ’s Gospel.” The question was whether these words included Unitarians. Among other kinds of evidence,the religious opinions of the testatrix as a trinitarian were adduced. The Judges, though holding Unitarians to be excluded, upon other considerations, excluded evidence of her religious opinion to give a construction to the devise. C. J. Tindall and Baron Parke, whose opinions were the leading ones, and are now received as controlling authorities on the whole subject, both adhere strictly to the modes before stated, of interpreting and applying written instruments. Baron Parke, after stating the two descriptions of extrinsic evidence just.referred to, adds (p. 626-7) that, “Noextrinsic evidence “of the intention of the party to the deed, from his “declarations, whether at the time of his executing the “instrument or before or after that time, is admissible,” “* * The excepted cases in which such evidence is admis- “ sible, if, indeed, there be more than one excepted case, “that'is, where there are two subjects, or two objects, “both described in the instrument, and each equally “agreeing with it, having no bearing whatever on the “ present question.” This one excepted case, put by the Baron, is the same stated by C. B. Abinger in Doe vs. Hiscocks, before cited. It is evident that Baron Parke, in here.stating the excluded evidence to be that of declarations, puts them as only an illustration of the rule — as only one of the excluded modes of proving intention by parol; for he afterwards says, that the sense of the terms, “poor and godly preachers” must be ascertained from legitimate sources, such as the usage of the words and the situation and circumstances of the party, which he had before explained, and adds, that the sense being so ascertained, “ no parol declaration of Lady Hewley, that she intended “ only a particular class or sect, or individuals with particular opinions, would have been admissable ; nor could “evidence of her conduct, character, habits or opinion, “have been receivable to raise an inference of such “intention.” C. J. Tindall, (p. 631-2,) after enumerating the several admissible modes of interpreting instruments, doubtful on their face, as by translations of a foreign language, or proof of usage, or custom, as applied to technical, ancient or idiomatic expressions, proceeds to say; “but while evidence is admissible in these instances “for the purpose of making the written instrument speak “for itself, which, without such evidence, would be a dead “letter, or would use a doubtful tongue, or convey a “false impression of the meaning of the party, I conceive “ the exception to be strictly limited to cases of the descrip- ‘ ‘ tion above given, and to evidence of the nature above tldetailed; and that, in no case whatever, is it permitted “ to explain the language of a deed by evidence of the “private views, the secret intentions, or the known princi“pies of the party to the instrument, whether religious, “political or otherwise, any more than by express parol “ declarations made by the party himself, which are uni- “ versally excluded.”

I must, in candor, confess myself unable to go with this decision to its full extent. It would seem that in the administration of a charity, which is rather an executive, than a judicial act, where the object of such a charity is the propagation of certain ■ doctrines or opinions, religious or otherwise, the opinions of the founder upon the subjects to which the charity relates, may be a legitimate subject of inquiry, without other restriction as to the sources of inquiry, than that they do not contradict the written evidence. On these more liberal principles, a religious charity of like nature, was dealt with in Atty-Gen. vs. Pearson, 3 Mer. 353, 7 Sim., 290; and the like principle was applied to Lady Hewley’s charity, by Lord Chancellor Lyndhurst, when the case was before him. 7 Sim. 309, n. But the opinions of the Judges in the House of Lords are useful for our purpose, because they establish a clear line of discrimination which, on the one hand, admits extrinsic evidence of that general nature which consists of facts connected with the subject-matter of the instrument, tending to identify the person or thing referred to, and necessary to apply language, plain on its face, to the subject-matter, and evidence which consists of translations or usage as means of interpreting language, not intelligible on its face, but, on the other hand, excludes all evidence not bearing directly on the words, and merely showing, independently of the words, what the parties intended in the particular transaction, whether such evidence is drawn from the declarations, admissions, acts, or opinions of the parties, either cotemporaneous with, or subject to the transaction. That must be taken as the great principle which must be considered as established by this interesting case ; whether or not it was well applied to exclude evidence of the opinions of a founder, in aid of the administration of a charity, is not here material.

And now we may proceed a step further and inquire, how far this principle has been observed in those adjudged cases in which the attempt has been to construe written instruments by the acts of the parties, which is the kind of proof adduced in this case. The precise question has been much discussed in a class of cases arising under leases for lives, with a covenant for perpetual renewal. In these cases the question was, whether the covenant for renewal was to be construed so as to exclude or include in the new lease a like clause of renewal, and the attempt was to construe the covenant according to the acts of the parties under it. The first of these cases was one sent from chancery by Lord Bathurst for the opinion of the Court of King’s Bench. Cooke, vs. Booth, Cowp., 819. This was a lease for three lives with a covenant for renewal. There had been several successive renewals granted by the lessor, the new leases each containing a like clause for renewal as the first, but after the lessor’s death, his devisee refused, upon the expiration of one of the lives, to grant a new lease with a like clause of renewal. The Court of King’s Bench held him bound, upon the ground that the parties having four times successively renewed under it,had put their own construction upon it. This decision gave great dissatisfaction to the English equity judges. Lord Thurlow, who sat upon the return of the certificate in that case, disapproved of it, although feeling himself bound to decree in accordance with it. 3 Ves. Jr., 298. Afterwards the principle of Cooke vs. Booth was condemned by Lord Alvanley in Baynham vs. Guy’s Hospital, 3 Ves. Jr., 295, and in Eaton vs. Lyon, ib, 690; by Sir Wm. Grant in Moore vs. Foley, 6 Ves. Jr., 231, a; and by Lord Eldon in Iggulden vs. May, 9 Ves. Jr. 325. In this latter case also, the opinion of the judges at law was taken upon the construction of a like covenant of renewal, first in the Kings Bench, 7 East, 237, and afterwards upon a writ of error in the Exchequer Chamber, 2 N. R., 449. Both these courts, contrary to the case of Cooke vs. Booth, rejected evidence of the acts of the parties in prior renewals as construing the covenant in the original lease. In the King’s Bench, Lord Ellenborough distinguishes the case from Cooke vs. Booth, upon the ground that it did not appear affirmatively from the pleading in the case before him, that the prior renewals had all included the clause for renewal, whereas, such did appear to have been the fact in Cook vs. Booth. But he refers to the principle of Cook vs. Booth, as being subject to “ grave and serious doubts.” In the Exchequer Chamber, however, C. J. Mansfield, delivering the opinion of the Court, wholly repudiates the admissibility of this sort of evidence, and says of Cook vs. Booth, that it was “the first time that the acts of parties to a deed “ were ever made use of in a court of law to assist the construction of that deed.”

In another and later case in the Exchequer, Maxwell vs. Ward 13 Price, 674, the same view is said to have been strongly taken. (3 Ves. Jr. 299, note 2, 696, note 3). I have not been able to find the case. Sir Edward Sugden, upon a review of this course of decisions in 1 Sugd on Vend. Ch. III, Sec. 10, par. 14, concludes that “ it appears “ to be now clearly settled that in the construction of an “agreement or deed, the acts of the parties cannot be taken into consideration.” A decision by the same learned author, as Chancellor of Ireland is cited by Green-leaf, (sec. 295 n.) From Atty. Gen. vs. Drummond, 1 Dru. and War., 353, to the point that the acts of a founder of a charity may be shown in aid of the deed ; and there is also cited contra, Atty. Gen. vs. Glasgow College, 10 Jurist, 676. These cases I have not been able to see.

*

The editors of Sumner and Perkins’ edition of Vesey Jr., in their notes to the cases before cited, which were before Lord Alvanly, Sir Wm. Grant and Lord Eldon, (3 Ves. Jr., 294; 2 Ib., 690; 6, Ib. 237;) have questioned the accuracy of the principles stated by those Judges, that the construction of a written instrument cannot be affected by the acts of the parties; without, however, any discussion of the subject by the editors, the doubt'being rested only upon a reference to several American cases. One of these, Stone vs. Clarke, 1 Metc., 378, together with Choate vs. Burnham, 7 Pick., 274 ; and also, Livingston vs. Ten Broeck, 16 Johns., 14, are the only American cases I have met with relevant to the question. In the New York case, in order to shew the extent of an equivocally expressed privilege to the grantee in it for cutting wood from other premises of the grantor, evidence was admitted of the subsequent acts of the parties in the exercise of the privilege ; but the admission of this evidence was based upon the antiquity of the deed, and the consideration that as, after so long a lapse of time, a general usage of such words could not be expected to be proved, the acts of the parties might be accepted as the next best evidence. In Choate vs. Burnham, the first of the Massachusetts cases, where the question concerned the extent, of a right of way under a deed, the Court considered the language of the grant, of itself, conclusive, but remarked, generally, that, were it doubtful, acts of the parties which had been put in evidence might be accepted to aid the construction. Stone vs. Clark is the case which evidently prompted the notes in Vesey. But that case presented that kind of latent ambiguity referred to by C. B. Abinger and Baron Parke, as the one exception to the rule excluding evidence of intention. The question was, whether a mortgage of a large tract, included, also, a small lot lying with it, the terms of description being general and fully satisfied, either by excluding or including the lot. The words were perfectly intelligible on their face, but applicable equally well to two different subject-matters, and, therefore, consistently with the ruling of the English cases, the subsequent acts of the parties under it might determine the application of the words one way or the other. Upon this ground, alone, the case may be supported, though the language of Judge Wilde goes beyond it.

Upon the whole, the rule to be gathered seems to be that, where a written instrument is required by statute, or by the nature of the transaction, such as a will, deed or contract respecting lands, parol evidence of the intention of the parties in the transaction, whether shewn by declarations, or acts, at the time of, or after, the transaction, is inadmissible as well to explain or construe doubtful or insensible words, as to contradict plain and ambiguous words. The admission of such evidence opens a door to the uncertainties and dangers of parol testimony, which it is the very object of statutes, such as those of wills and of frauds, effectually to prevent. It is not surprising if courts, under the pressure of an inclination to give some construction to instruments of an executed character, under which the rights of parties are involved, one way or the other, such as wills and deed, should, sometimes, yield admission to strong evidence of intention, to construe doubtful words, especially in states where there is no equity jurisdiction for reforming instruments according to the intention of the parties. But we are free from any such embarrassment. For as to executed instruments, we have an ample jurisdiction to reform them, and make them speak unequivocally the real intention, and in a case such as the present, in which the contract is executory and the parties remain in statu quo, there is no interest involved so serious as to sway the Court from maintaining the wholesome policy of the Statute of Frauds, by requiring a written contract, unaided by parol proof of mere intention, leaving the terms subject to what we have seen are the ordinary, recognized modes of interpretation.

The decree must, therefore, be entered as already directed.

The case of Atty. Gen., vs. Drummond, here referred to, will be found, upon examination, not to bear out fully the impression given by Greenleafs citation of it, without respect to its subject-matter.

The deed there under construction was made by certain members of trinitarian dissenting congregations to etablish a trust for certain purposes, viz : first,to support the protestant dissenting interest against unreasonable prosecutions; secondly, to educate youth designed for the ministry amongst protestant dissenters; and thirdly, to assist poor protestant dissenting congregations. The information was filed to prevent the application of any portion of the fund, in aid of the teachers of doctrines at varience with belief in the Trinity, and the case involved an inquiry into the construction of the deed with reference to the doctrinal character of the beneficiaries. The Lord Chancellor discussed, very much at length, the question, what kind of parol evidence was admissible to construe a deed.

In the course of the opinion, there occurs a passage which gives his conclusion, and is probably the foundation of the citation in Greenleaf; “ I reject, “therefore, at once, all evidence, which goes to show what the founders “ thought, what their opinions were, in order to put a construction on this “ deed; but I shall not exclude evidence which informs me what they did. I “ shall receive evidence, which goes to show, to what places of worship they “ resorted, or what their acts were, although this may not throw any light upon “the construction of the deed. I am clearly at liberty to receive such evidence, “ because this deed proceeds upon certain existing foundations, which, it was “intended, should be continued and maintained for the future. I must, therefore, “ inquire what were the foundations referred to by this deed, and I cannot do “ so without knowing how far the founders were mixed up with these establish- “ ments, not as to their individual opinions, but as to their acts, in forming a “ part of the general body, whatever their opinions were, who resorted to these “ foundations.

“Nobody will dispute, that I am entitled to evidence (indeed, I am “ bound to know it without evidence) of the opinions professed by the general “body of Presbyterians. I am at perfect liberty, with evidence or without it, “to resort to the “Westminster confession of faith,” whether Presbyterians “ subscribe it or not. If I find them in connection with the Synod of Ulster, “ then I must inquire, what was the practice of that Synod, in matters of “ religion, before I decide whether Unitarians are, or are not, included in the “ trusts of this deed; I must know all about the foundations established before “the execution of this deed, to enable meto decide who come within the trusts “which it has created.”

The case of Lady Hewley’s charities, before referred to, was then pending the House of Lords, and Sir Edw. Sugden declined to make a final decree in the case before him, until that case should be concluded. It will be observed, however, that the the views expressed by this distinguished judge and author, in this case, are, in no respect, antagonistic to the principles laid down by the Chancellor in the case reported in the text; and, with respect to the subject-matter of the case of Atty. Gen. vs. Drummond, they do not go further, if, indeed, so far as does the Chancellor in his observations upon the case of Lady Hewley’s charities.