Mason, J.,
delivered the follbwing opinion, upon the appeal of Worthington..
This- proceeding had its- origin in transactions that took place nearly forty years ago-, and the bill itself was filed' as far back as a quarter of a century. Thus it will be seen that we are required to deal mainly with the acts and doings of those who are- now no more. Most of those who were participators in these- proceedings in their origin — the court, parties, counsel, witnesses and officers — -have passed from the-active scenes of the fallible courts of this earth, to the solemn,, silent and unerring tribunals of the other world.
The chancellor has truly remarked that this case- is one of importance, not only with reference to the amount of property involved, but also as regards the propositions to be decided', embracing as they do important principles of law, as well as delicate questions of morality and character.
We have carefully examined the able opinion of the chan[195]*195cellor, and we fnlly concur with him that most of the points presented by this record, have been fully settled by cases heretofore adjudicated in Maryland, and we therefore adopt the conclusion to which he has arrived.
The point in this case, which is attended with the most difficulty, as we conceive, is that which relates to the parol •agreement, between the father and the son, of 1817, which, as is alleged, formed the basis or consideration for the subsequent deeds of 1825. Conceding that this parol agreement was a valid one, by reason of its having been partly executed, and that a further specific performance of its other provisions would have been decreed by a court of chancery, still, notwithstanding its having been partly performed at the time it was entered into, it continued, nevertheless, executory in its character, and as such, it was competent for the parties to have reduced it to writing, and thus to have merged the original parol contract into a written agreement, or even to have substituted an entirely new written contract, in the place of the one which originally rested in parol: and when this has been done the verbal agreement becomes merged in the written contract. Can these plain propositions be doubted, or is it necessary to invoke authorities to support them?
It is said by the defendants’ counsel, that this is not an attempt to explain or defeat a written contract by proof of a parol one, but that it is a proposal to set up a valid, perfect, independent parol agreement, which has been in part executed. We concede this to be within the power of the defendant, if he had thought proper to rest his case upon such an agreement. But this he has not done. The witness that established this verbal contract, goes further, and proves that subsequently a bond of conveyance was executed, by the assent of both parties, the purpose of which was to effectuate if not extinguish the parol agreement. Until this bond is produced, we cannot tell what were its precise provisions and legal effect. Suppose it had referred to the parol agreement, and had professed upon its face to have been a literal transcript of it, could there be a doubt that it would have been [196]*196a complete extinguishment of it, and that all parol evidence of the first agreement would have been inadmissible? This principle is conceded in the case of Jones vs. Hardesty, 10 G. & J., 416. In that case in pursuance of a verbal agreement, an assignment in writing had been made, and it was contended that the former was merged in the latter. But this view was not sustained by the court, on the ground, expressly, “that it was nothing more than an act done by one of the parties in execution of the oral agreement into which he had entered.” This other general principle however is clearly recognised; “if the oral contract referred to had been reduced •to writing by the parties, or if it was intended that the assignment should be such written contract of the parties then might it be contended, in the absence of all proof of fraud, surprise .or mistake, that the oral evidence offered by the - appellee was inadmissible.”
But it may be said that there was no evidence that such was the nature and purpose of the bond. Concede this also: yet it'- is clear from the proof that it related to the same subject matter with the parol agreement. Concede further that it was inconsistent and repugnant to the agreement. In such an event which should control? The bond, clearly, and if for no other reason than because it was of subsequent date. If both the bond and agreement were of equal dignity — for example, under seal — the last, even in such a ease, must control the first. This principle is settled in the case of Dorsey vs. Smith, 7 Har. Johns., 363, and is thus stated: “The first instalment due by Dorsey on the original contract for the sale of the lands was paid, and before the second instalment became due Dorsey entered into a bond, conditioned for the payment to Smith of the residue of the purchase money...... Thus by this contract there seems to have been a partial modification of the original agreement as to the payments, and being the last stipulation, must be considered as binding on the parties.”
If then one written agreement is to control another, inconsistent with it, between the same parties, because of its being [197]*197of a later date, a fortiori, should a bond, under the same circumstances, control an oral contract.
Nor can it be said that the bond, as in the case of Jones vs. Hardesty, before cited, was executed in pursuance of, or in part performance of the verbal agreement. The latter, as established by the witness, does not contain any stipulation that a bond was to be executed, nor was any necessary to effectuate the oral agreement, as was the ease in Jones vs. Hardesty. In any aspect therefore in which this bond can b,e viewed, upon the testimony before us, we must regard it as a written copy of the original verbal agreement, or as a new contract substituted in the place of the first, and in either case must control by its terms and provisions the rights of the parties, in opposition to any conflicting provisions embraced in the previous verbal contract.
In order to know, as we have before said, what was the character and legal effect of this bond, it should have been produced, or its absence accounted for, or explained. Without its production, or some satisfactory explanation of its absence, the defendant cannot advance with his case. We therefore concur with the chancellor, in the first place, that the alleged parol agreement of 1817, if it related to the land aow in controversy, was merged and extinguished, or at least suspended, by the bond of conveyance which was afterwards executed ; and secondly, that the bond not having been produced, nor its absence explained, parol evidence of its contents, or of the terms of the original agreement, would not be admissible. Nor can we discover that the alleged cross-examination of the witness by the complainants’ counsel, was of such a character as to remove the objection to the testimony. We have attentively considered the views of the chancellor upon this point, and fully concur in them.
The validity therefore of the defendants’ title to the real estate in question, must depend upon the condition of the parties, and the state of facts, as they existed at the time of the execution and delivery of the deeds of 1825.
It is conceded that the actual money consideration which [198]
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Mason, J.,
delivered the follbwing opinion, upon the appeal of Worthington..
This- proceeding had its- origin in transactions that took place nearly forty years ago-, and the bill itself was filed' as far back as a quarter of a century. Thus it will be seen that we are required to deal mainly with the acts and doings of those who are- now no more. Most of those who were participators in these- proceedings in their origin — the court, parties, counsel, witnesses and officers — -have passed from the-active scenes of the fallible courts of this earth, to the solemn,, silent and unerring tribunals of the other world.
The chancellor has truly remarked that this case- is one of importance, not only with reference to the amount of property involved, but also as regards the propositions to be decided', embracing as they do important principles of law, as well as delicate questions of morality and character.
We have carefully examined the able opinion of the chan[195]*195cellor, and we fnlly concur with him that most of the points presented by this record, have been fully settled by cases heretofore adjudicated in Maryland, and we therefore adopt the conclusion to which he has arrived.
The point in this case, which is attended with the most difficulty, as we conceive, is that which relates to the parol •agreement, between the father and the son, of 1817, which, as is alleged, formed the basis or consideration for the subsequent deeds of 1825. Conceding that this parol agreement was a valid one, by reason of its having been partly executed, and that a further specific performance of its other provisions would have been decreed by a court of chancery, still, notwithstanding its having been partly performed at the time it was entered into, it continued, nevertheless, executory in its character, and as such, it was competent for the parties to have reduced it to writing, and thus to have merged the original parol contract into a written agreement, or even to have substituted an entirely new written contract, in the place of the one which originally rested in parol: and when this has been done the verbal agreement becomes merged in the written contract. Can these plain propositions be doubted, or is it necessary to invoke authorities to support them?
It is said by the defendants’ counsel, that this is not an attempt to explain or defeat a written contract by proof of a parol one, but that it is a proposal to set up a valid, perfect, independent parol agreement, which has been in part executed. We concede this to be within the power of the defendant, if he had thought proper to rest his case upon such an agreement. But this he has not done. The witness that established this verbal contract, goes further, and proves that subsequently a bond of conveyance was executed, by the assent of both parties, the purpose of which was to effectuate if not extinguish the parol agreement. Until this bond is produced, we cannot tell what were its precise provisions and legal effect. Suppose it had referred to the parol agreement, and had professed upon its face to have been a literal transcript of it, could there be a doubt that it would have been [196]*196a complete extinguishment of it, and that all parol evidence of the first agreement would have been inadmissible? This principle is conceded in the case of Jones vs. Hardesty, 10 G. & J., 416. In that case in pursuance of a verbal agreement, an assignment in writing had been made, and it was contended that the former was merged in the latter. But this view was not sustained by the court, on the ground, expressly, “that it was nothing more than an act done by one of the parties in execution of the oral agreement into which he had entered.” This other general principle however is clearly recognised; “if the oral contract referred to had been reduced •to writing by the parties, or if it was intended that the assignment should be such written contract of the parties then might it be contended, in the absence of all proof of fraud, surprise .or mistake, that the oral evidence offered by the - appellee was inadmissible.”
But it may be said that there was no evidence that such was the nature and purpose of the bond. Concede this also: yet it'- is clear from the proof that it related to the same subject matter with the parol agreement. Concede further that it was inconsistent and repugnant to the agreement. In such an event which should control? The bond, clearly, and if for no other reason than because it was of subsequent date. If both the bond and agreement were of equal dignity — for example, under seal — the last, even in such a ease, must control the first. This principle is settled in the case of Dorsey vs. Smith, 7 Har. Johns., 363, and is thus stated: “The first instalment due by Dorsey on the original contract for the sale of the lands was paid, and before the second instalment became due Dorsey entered into a bond, conditioned for the payment to Smith of the residue of the purchase money...... Thus by this contract there seems to have been a partial modification of the original agreement as to the payments, and being the last stipulation, must be considered as binding on the parties.”
If then one written agreement is to control another, inconsistent with it, between the same parties, because of its being [197]*197of a later date, a fortiori, should a bond, under the same circumstances, control an oral contract.
Nor can it be said that the bond, as in the case of Jones vs. Hardesty, before cited, was executed in pursuance of, or in part performance of the verbal agreement. The latter, as established by the witness, does not contain any stipulation that a bond was to be executed, nor was any necessary to effectuate the oral agreement, as was the ease in Jones vs. Hardesty. In any aspect therefore in which this bond can b,e viewed, upon the testimony before us, we must regard it as a written copy of the original verbal agreement, or as a new contract substituted in the place of the first, and in either case must control by its terms and provisions the rights of the parties, in opposition to any conflicting provisions embraced in the previous verbal contract.
In order to know, as we have before said, what was the character and legal effect of this bond, it should have been produced, or its absence accounted for, or explained. Without its production, or some satisfactory explanation of its absence, the defendant cannot advance with his case. We therefore concur with the chancellor, in the first place, that the alleged parol agreement of 1817, if it related to the land aow in controversy, was merged and extinguished, or at least suspended, by the bond of conveyance which was afterwards executed ; and secondly, that the bond not having been produced, nor its absence explained, parol evidence of its contents, or of the terms of the original agreement, would not be admissible. Nor can we discover that the alleged cross-examination of the witness by the complainants’ counsel, was of such a character as to remove the objection to the testimony. We have attentively considered the views of the chancellor upon this point, and fully concur in them.
The validity therefore of the defendants’ title to the real estate in question, must depend upon the condition of the parties, and the state of facts, as they existed at the time of the execution and delivery of the deeds of 1825.
It is conceded that the actual money consideration which [198]*198passed between the parties to the deed, was $5000, and that that sum fell far below the real value of the land covered by the conveyance. But it has been strongly urged in argument, that this fact was an immaterial circumstance, and that a deed, if it rests upon a moneyed consideration, must be supported, even though that consideration bears no adequate relation to the real value of the property. This proposition, as a universal rule, is not correct, so far at least as third parties or creditors are concerned. It is true it gives to the deed, in contemplation of law, the character of a bargain and sale, and subjects it to all the rules of interpretation and the' like, which govern such instruments. Nevertheless a deed valid in all respects as between the parties, maybe assailed, in chancery by creditors, solely upon the- ground of inadequacy of consideration; as for example, where land is sold and conveyed at private sale, as this was, and a consideration in money received therefor palpably less than its real value, or what it would bring at public sale in the market. Under such circumstances, a court of equity will regard the transaction as evidence, either of fraud, or a design on the part of the grantor to make a gift to the grantee of the difference between the price paid, and the actual value of the property, and if the latter, the deed to the extent of the difference, must be regarded as voluntary, or resting upon the consideration of natural love and affection. If this were not so, fraud could be perpetrated upon creditors with impunity, by converting deeds based in fact upon considerations of love and affection, into those which rest upon a moneyed consideration, by merely agreeing to receive a trivial price in money for the property sold. Whether such a voluntary deed can be supported or not, must depend upon the condition of the grantor at the time of its execution. If, therefore, at the time of the execution of the deed the grantor had creditors, who would be hindered, delayed and exposed to expense and difficulty in collecting their debts, by reason of the deed, even though the grantor was not in fact insolvent, still so far as it was voluntary, or rested upon the consideration of natural [199]*199love and affection, it would be void. We think it clearly appears that such was the condition of Mr. Worthington, the senior, when the deeds to his son were executed, in 1825, and consequently they were void as to creditors, who were such before and at the time.
We have not said, nor do we design to intimate, that the deed in question was in fact fraudulent in its inception. We pronounce it void, because of the fact alone, of its having been a voluntary conveyance, made at a time when the grantor was indebted, and that that indebtedness still exists.
There are other points presented by this record, and which have been considered by the chancellor, to which we do not deem it necessary to refer, for the purpose of either affirming or denying. We have said enough in this opinion to dispose of the case, as now presented, and accordingly we feel constrained to affirm the decree.
Decree affirmed, with costs, and cause remanded for further proceedings, fa the circuit court of Baltimore county.