Kenney v. Aitken

9 Daly 500

• Court: New York Court of Common Pleas
• Decided: February 7, 1881
• Status: Published

Opinions

Van Brunt, J.

[After stating the facts as above.]—I have been unable to discover any principle upon which the plaintiff could be allowed to contradict the recitals contained in the trust deed. It is true that a party has the right to recover unpaid consideration mentioned in a deed, but there is no principle upon which a recital of a fact in a deed can be controverted by parol testimony, and it is equally well settled that independent parol agreements in addition to the terms and conditions of a deed cannot be established. The cases of Wilson v. Deen (74 N. Y. 531), and Von Borkelen v. Taylor (62 N. Y. 105), clearly establish this proposition.

In the case of Cocks v. Barker (49 N. Y. 107), it was held that the recital in the bond of a fact, although the existence of that fact formed the consideration for the execution of the bond, was a substantive part of the agreement, and not like the consideration clause of a conveyance or other instrument which might within certain limits be explained and varied by parol.

The plaintiff in this action seeks to add to the deed of trust another and different agreement from that which is contained in the recitals. In the case of Decker v. Judson (16 N. Y. 439), and in Levi v. Dorn (28 How. Pr. 217), it is also distinctly held that the parties to an agreement are bound by its recitals.

In view of these authorities it was error to permit the plaintiff to offer evidence which contradicted, the recitals contained in the trust deed.

The judgment must therefore be reversed and a new trial ordered, with costs to abide the event.