contract by a tenant for life with a power of leasing, to grant a lease under his power, was binding on the remainder-man. In the course of the argument, a question was put from the bar, whether, if this had been a case of a parol agreement in part performed, it could be enforced? In answer to which, Lord Redesdale expressed himself thus: "That, I think, would raise a very distinct question, a question upon the statute of frauds; and perhaps a remainder-man might be protected by the statute, though the tenant for life would not. For the (*)party himself is bound by a part-performance of a parol agreement, principally on the ground of fraud, which is personal. Such a ground could scarcely be made to apply to the case of a remainder-man, unless money had been expended, and there had been an acquiescence after the remainder vested, which were held by Lord Hardwicke, in Stiles v. Cowper, 3 Atk. 692, in the case of an actual lease under a power, but with covenants not according to the power, to bind the remainder-man to grant a lease for the same term with covenants according to the power."

In a case where it was alleged on the one side, that under a parol agreement the purchase-money had been paid and possession delivered; and on the other, that there was no sale, but that possession was delivered to make a qualification, and the alleged purchaser was a mere agent, and both the seller and purchaser were dead; an issue was directed whether the purchaser was, at his death, beneficially entitled to the premises in question(m).

These remarks may be closed by observing, that equity seems to have been guided by nearly the same rules in compelling a specific performance of parol agreements

(m) Burkett v. Randall, 3 Mer. 466.

before the statute(n), as have been adhered to since; but still, the student cannot be too cautious in distinguishing the cases which were decided before the statute from those decided subsequently. Much confusion has arisen from inattention to this point.

000

(*)SECTION IV.

Of the Admissibility of Parol Evidence to vary or annul Written Instruments.

OF this learning we may treat under three heads, 1st, where there is not any ambiguity in the written instrument; 2dly, where there is an ambiguity; and, 3dly, where a term of an agreement is omitted or varied in the written instrument by mistake or fraud.-And,

I. Previously to the statute of frauds, parol evidence might have been given of collateral and independent facts, which tended to support a deed. Thus, although a valuable consideration was always essential to the validity of a bargain and sale, yet Rolle laid it down, that(o) upon averment that the deed was in consideration of money, or other valuable consideration given, the land should pass, because the averment was consistent with the deed. The same rule has prevailed since the statute of frauds. Where in a conveyance 281. only were stated

(n) See Miller v. Blandist, Toth. 85; Willam v. Nevil, ibid. 135; Ferne v. Bullock, ibid. 200, 238; Clark v. Hackwell, ibid. 260; Simmons v. Cornelius, 1 Cha. Rep. 128; Anon. 2 Freem. 128; Voll v. Smith, 3 Cha. Rep. 16; and see Marquis of Normanby v. Duke of Devonshire, 2 Freem. 217.

(0) 2 Ro. Abr. 786.(N.) pl. 1; and see 1 Rep. 176, a.

to have been received, parol evidence was admitted to prove that 27. more were actually paid(p)(79). And in a later case parol evidence was received, that a sum of money was paid as a premium in order to constitute the relation of master and apprentice, although no mention of it was made in the written agreement entered into between the parties(q). In all these cases we observe, that the evidence is not offered to contradict or vary the agreement, but to ascertain an independent fact, which is consistent with the deed, and which it is necessary to (*)ascertain, with a view to effectuate the real intention of the parties.

It is, however, clearly settled, that parol evidence is not admissible to disannul and substantially vary a written agreement; for, as Lord Hardwicke observes, to add any thing to an agreement in writing by admitting parol evidence, is not only contrary to the statute of frauds and

(p) Rex v. the Inhabitants of Scammonden, 8 Term Rep. 474. (q) Rex v. the Inhabitants of Laindon, 8 Term Rep. 379; and see 2 Cha. Ca. 143; Tull v. Parlett, 1 Mood. & Malk. 472.

(79) See Davenport v. Mason, 15 Mass. Rep. 85. The fact whether the consideration expressed in the deed, was paid, or not, may be inquired into by parol evidence. Shepard v. Little, 14 Johns. Rep. 201. Bowen v. Bell, 20 Johns. Rep. 338. So, if a deed, after specifying a certain consideration, adds, " and for other considerations," parol evidence may be resorted to, to prove what those considerations were. Benedict v. Lynch, 1 Johns. Ch. Rep. 370. See Harvey v. Alexander, 1 Rand. 219. But in Schemerhorn v. Vanderheyden, 1 Johns. Rep. 139, it was held, that a different, or greater consideration, than that expressed in the written agreement, was intended cannot be proved by parol. See Church v. Church, 4 Yeates, 280.; also, Dixon v. Swiggett, 1 Har. & Johns. 252.

An acknowledgment, in the body of a deed, of the payment of the purchase-money, and a receipt indorsed for the same, not conclusive evidence of payment, nor a bar to a suit for the purchase-money. Hamilton v. M'Guire, 3 Serg. & Rawle, 355. See Bell v. Andrews, 4 Dall.

152.

perjuries, but to the rule of the common law before that statute was in being(r)(80).

Thus, in a leading case on this subject(s), it appeared that by an agreement in writing, the grass and vesture of hay from off a close of land, called Boreham's Meadow, were to be taken by one Ansell. The subscribing witness to the agreement proved the written agreement, and he and another person deposed, that it was at the same time (when the written agreement was made) agreed by the

(r) Parteriche v. Powlet, 2 Atk. 383; and see Tinney v. Tinney, 3 Atk. 8; Binstead v. Coleman, Bunb. 65; Hogg v. Snaith, 1 Taunt.

347.

(s) Meres v. Ansell, 3 Wils. 275; and see Mease v. Mease, Cowp. 47; Lofft, 457; Cuff v. Penn, 1 Mau. & Selw. 21; Greaves v. Ashlin, 3 Campb. 426; Hope v. Atkins, 1 Price, 143.

(80) This principle is also well settled in most of the United States. Richards v. Killam, 10 Mass. Rep. 239, 244. Stevens v. Cooper, 1 Johns. Ch. Rep. 425. Jackson v. Sill, 11 Johns. Rep. 201. Paine v. M'Intier, 1 Mass. Rep. 69. Revere v. Leonard, 1 Mass. Rep. 91. Storer v. Freeman, 6 Mass. Rep. 435. Stackpole v. Arnold, 11 Mass. Rep. 27. Dwight v. Pomeroy, 17 Mass. Rep. 303. Thompson v. White, 1 Dall. 426. O'Harra v. Hall, 4 Dall. 340. M'Dermot v. U. S. Ins. Co. 3 Serg. & Rawle, 609. Speake v. United States, 9 Cranch, 28, 37. Pierson v. Hooker, 3 Johns. Rep. 68. Howes v. Barker, 3 Johns. Rep. 506. Jackson v. Croy, 12 Johns. Rep. 427. Thompson v. Ketchum, 8 Johns. Rep. 146. 2d edit. Fitzhugh v. Runyon, 8 Johns. Rep. 292. 2d edit. Movan v. Hays, 1 Johns. Ch. Rep. 339. Stevens v. Cooper, 1 Johns. Ch. Rep. 425. Snyder v. Snyder, 6 Binn. 483. Lee v. Biddis, 1 Yeates, 8. Vandervoort v. Smith, 2 Caines' Rep. 155. Hamilton v. Cawood, 3 Har. & M'Hen. 437. Dupree v. M'Donald, 4 Des. 209. Barret v. Barret, 4 Des. 447. Sessions v. Barfield, 2 Bay, 94. Milling v. Crankfield, 1 M'Cord, 261. South Carolina Society v. Johnson, 1 M'Cord, 41. Jackson v. Bowen, 1 Caines' Rep. 358, Ross v. Norvell, 1 Wash. 14. v. Willis, 2 Call, 5. But see Baker v. Glascock's Les. 1 Hen. & Munf. 177. Mann v. Mann, 1 Johns. Ch. Rep. 231. Herd v. Bissell, 1 Root, 260. Dunham v. Baker, 2 Day, 137. See Treadwell v. BulkSmith v. Fenner, 1 Gallis. 170. Holmes v. Simons,

ley, 4 Day, 395.;

3 Des. 149, 152.

Little v. Henderson, 2 Yeates, 295.

Flemings

parties by parol, that Ansell should not only have the hay from off Boreham Meadow, but also the possession of the soil and produce of that and another close of land. The cause was tried at nisi prius before Lord Mansfield, who admitted the evidence, and afterwards reported that he was not dissatisfied with the verdict in consequence of it. But Lord Chief Justice De Grey, and the other Judges of the Court of Common Pleas, held decidedly, that the evidence was totally inadmissible, as it annulled and substantially altered and impugned the written agreement (81).

(81) A vendor of land in several lots was unable to give a title to one, whereupon the vendee agreed by parol to waive the title as to that lot. This agreement cannot be set up against the original contract in writing. The judgment contains many observations on the power of varying contracts in writing, by subsequent parol agreements, and a distinction between contracts in writing under the statute of frauds and other contracts in writing. Parke, J. stated that he never could understand the principle upon which Cuff v. Penn, 1 M. & S. 21. and similar cases proceeded. Goss v. Lord Nugent, 5 B. & Ad. 58; 3 Nev. & Man. 28. S. C.

It is true as a general rule that any verbal agreement before the making of the writing is not to be received in evidence; but the writing alone is to be looked to as the evidence of the final agreement. In Gerrish v. Washburn, 9 Pick. 338, where the defendants gave an accountable receipt for money received of the plaintiffs; and this action being brought to recover the money, the defendants at the trial offered to prove, that before the execution of the receipt, the plaintiff being indebted to one W.; and the latter indebted to the defendants, agreed that the latter might arrange the payment of the money mentioned in the receipt with W.: And that the receipt was made in execution of the contract :—but the Judge rejected the evidence. The whole Court granted a new trial; and held that it was admissible; for the writing was neither a promissory note, nor a mere receipt. "We view it, said the chief justice, in neither of these lights, or rather in both. The promise made in the receipt may be performed otherwise than by paying over the money to the plaintiff, and in any way conformable to the intention of the parties."

The maxim that a sealed contract cannot be avoided or waived but by an instrument of a like nature; or generally, that a contract under