Paine v. M'Intier

1 Mass. 52

Opinion

But the Court (Dana, C. J., Strong, Sedgwick, and Thacher, justices) would not admit the evidence. They said it was contrary to all the rules of law on the subject; that there was no instance where parole evidence was admitted to contradict a deed, not even the declarations of the himself;

Footnotes

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(1) parole evidence is inadmissible to explain a deed, unless it contain some latent ambiguity, which is not the present case. The words are express that these two heirs had conveyed all their right to the real and personal estate of their grandfather, and they are * estopped from denying it, or proving the contrary in any way except by evidence of as high a nature as the deed itself. It is clear, therefore, that they cannot maintain the action against the defendant.

The other five heirs had judgment for the sum decreed to them by the judge of probate, with interest from the time of passing the decree till the rendition of the judgment in this Court. (2)

A question was made as to the form in which the judgment was to be entered. By the stat. of Feb. 15, 1787, (stat. 1786, c. 55, § 2,) it is enacted “ that when it shall satisfactorily appear, upon a hearing in chancery upon an administration bond, for whose particular use and benefit the money for which execution issues is to enure; the judgment shall be rendered that the plaintiff, in his said capacity, (naming him), now have execution for-, being part of the penalty forfeited and costs taxed at-, for the use of A. B., creditor or heir (as the case may be) of the deceased. And the person to whose use the judgment shall be rendered may sue out execution thereon, and shall be deemed and taken to be the creditor to every intent, &c. And when there are several persons to whose use the moneys recovered on an administration bond are to enure, there shall be as many separate and distinct judgments inform aforesaid.” The Court said it was impossible to render judgment according to the letter of the statute, without running into the greatest absurdity. After some consideration, they directed judgment to be entered for the penalty; and that execution should issue for $379 60 cents, that is to say, $75 92 cents, part thereof for the use of A.; $75 92 cents, other part thereof for the use of B., (and so for the other three heirs,) they, the said A. B., &c., being the children and heirs of Dorcas Putney.” “And it doth appear and is proved to the Court here that I. P. and N. P., the other * children and heirs of the said Dorcas Putney, have, respectively, released their shares to the defendant aforesaid. It is, therefore, further considered by the Court here that execution do not issue for their use.” Something was said respecting a division of the costs among those heirs who recovered; but the Court directed the costs to stand undivided, (a)

Bangs and J. Upham for the heirs. Merrick and F. Blake for the defendant.

The declaration of a grantee and other circumstances have since been admitted to prove that land really included in a conveyance was not so intended by the parties; but. this was an action of covenant broken to recover damages for the failure of title in respect of the land in question, and the Court distinguished the case then before them from this of Paine vs. M’Intier, the authority of which they recognized. — Post, vol. x. Leland vs. Stone, (a)

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In a subsequent case, where an action of debt was brought in the name of the judge of probate, by a creditor, against a surety in the administration bond, interest was allowed only from the time of a demand made upon the surety, and the Court declared that they did not hold themselves bound by the decision in this case. — vol. x. 371, Heath vs. Gay.

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[The case of Stone vs. Leland has no authority to support it, anil conflicts with the well-settlee rules of law. — Ed ]

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Since the foregoing case was decided, I have been favored with the following form of a judgment rendered in a similar case, said to have been drawn up by the Chief Justice Sargeant. At Boston, August term, 1787, Oliver Wendell, Esq., judge of probate, vs. William Penniman. — “ It is therefore considered by the Court that the said 0. W., in his said capacity, recover against the said W. P. the sum of-debt, being the penalty of the bond declared on and costs; and that the said O. W., in his said capacity, now have execution for-, being part of the penalty forfeited, and one third part of the costs, taxed at-, for the use of-, being heir to the estate of — deceased; ” (imd so for the other two heirs.)