is admissible of the real intent of the parties(), and the settlement will be rectified in conformity with it.

Where parties omit any provision in a deed, on the impression of its being illegal, and trust to each other's honor, they must rely upon that, and cannot require the defect to be supplied by parol evidence.

Thus in Lord Irnham v. Child (m), it appeared that Lord Irnham treated with Child for sale of an annuity. Upon settling the terms, it was agreed that the annuity should be redeemable; but both parties supposing that this appearing upon the face of the transaction would make it usurious, it was agreed that the grant should not have in it a clause of redemption; and it was accordingly drawn and executed without such a clause. Lord Thurlow refused to supply the omission. A similar decision was made by Mr. Justice Buller, when sitting in Chancery for the Lord Chancellor(n); and two similar determinations were made by Lord Kenyon, when Master of the Rolls(0).

(*)Upon these cases Lord Eldon observes, that they went upon an indisputably clear principle, that the parties did not mean to insert in the agreement a provision for re

(1) Harvey v. Harvey, 2 Cha. Ca. 180, decided the same way, first by Sir Harbottle Grimston, then by Lord Nottingham, and afterwards by Lord Chancellor Jefferies; and see Fitzgib. 213, 214; see Stratford v. Powell, 1 Ball & Beatty, 1.

(m) 1 Bro. C. C. 92.

(n) Hare v. Shearwood, 1 Ves. jun. 241; 3 Bro. C. C. 168. and consider Haynes v. Hare, 1 Hen. Blackst. 659(II).

See

(0) Lord Portmore v. Morris, 2 Bro. C. C. 219; 1 Hen. Blackst. 663, 664; Rosamond v. Lord Melsington, 3 Ves. jun. 40, n.

that as to the nature of the forfeiture, it is evident that the relief of equity would not have been afforded, for the purpose of upholding the settlement, except under the Restoration!

(II) Perhaps this case does not belong to this line of cases, but should be classed with those in which a term is omitted by mistake; of which

vide supra.

demption, because they were all of one mind that it would be usurious; and they desired the Court to do not what they intended, for the insertion of that provision was directly contrary to their intention; but they desired to be put in the same situation as if they had been better informed, and consequently had a contrary intention. The answer is, they admit it was not to be in the deed; and why was the Court to insert it, where two risks had occurred to the parties; the danger of usury, and the danger of trusting to the honor of the party?

But fraud is in equity an exception to every rule. In the case of Lord Irnham v. Child, Lord Thurlow distinctly said, if the agreement had been varied by fraud, the evidence would be admissible. If the bill stated that the clause was intended to be inserted, but it was suppressed by fraud, he could not refuse to hear evidence read to establish the rule of equity. Lord Kenyon advanced the same doctrine in the cases before him, and Mr. Justice Buller also thought that parol evidence was, in such cases, admissible(p).

The only difficulty in these cases is, to ascertain what shall be deemed fraud. If parties merely agree to a term, and then execute an instrument in which the term is omitted, without objecting to the omission of it, the Court cannot relieve the injured party (q). So where a lessor drew a lease for one year, instead of twenty-one, and then read it for twenty-one years, the lessee brought his bill to be relieved; but as he could read, it was deemed his own (*)folly; and as the case was within the statute, his bill was dismissed with costs(r). Again, where in a lease the

(p) And see Taylor v. Radd, 5 Ves. jun. 395, cited; Henkle v. R. E. A. Office, 1 Ves. 317; and see Pitcairne v. Ogbourne, 2 Ves. 375; Countess of Shelburne v. the Earl of Inchiquin, 1 Bro. C. C. 338. (q) See Rich v. Jackson, 4 Bro. C. C. 514; et supra, p. (r) Anon. Skin. 159.

143.

right to enter, cut, and carry away the trees, was reserved to the lessor, the lessee went into parol evidence to show that that was contrary to the original agreement, and proved a conversation previously to the execution of the lease, in which the landlord assured the lessee he should not cut the timber, and only reserved it in order that all his leases might be uniform. The plaintiff's counsel, however, gave up this part of the bill at the hearing(s), and Lord Rosslyn treated it as clearly wrong. So I am told that in a very recent case at law(t), where a warrant of attorney was given to confess judgment on the assurance of the creditor that no execution should issue for three years, and execution was, contrary to this parol agreement, issued immediately, the Court inclined, that as the defendant knew the contents, and had sufficient time to read the warrant of attorney, they could not relieve; and yet a court of law considers itself to have a considerable controlling power over its own judgments entered up under warrants of attorney, where the party entering them up has been guilty of a fraud(u). case, however, went off on another ground(111).

The

In the Countess of Shelburne v. the Earl of Inchiquin(x), Lord Thurlow said, if two persons entrust a third person to draw up minutes of their up minutes of their intention, and such

(8) Jackson v. Cator, 5 Ves. jun. 688.

(1) Gennor v. Macmahon, M. T. 1806, B. R. .

(u) See 1 H. Blackst. 63, 664.

(x) 1 Bro. C. C. 350; and see Crosby v. Middleton, 3 Cha. Rep. 99; Langley v. Brown, 2 Atk. 195; Baker v. Paine, 1 Ves. 6.

(111) As to the validity of private agreements of parties, relating to the proceedings in a cause. See Dunlop's Les. v. Speer, 3 Binn. 169. Plankenhorn v. Cave, 2 Yeates, 370. Parol evidence is inadmissible to shew, that a levy and sale under a fi. fa. has been abandoned by the plaintiff, in contradiction of the sheriff's deed. The proper remedy, in such case, would be an application to the Court to set aside the sale. Jackson v. Vanderhayden, 17 Johns. Rep. 167.

person does not draw them according to such intention, that case might be relieved, because that would be a kind of fraud.

And it is said, that in the case of Jones v. Sheriffe (y), (*) there were heads of an intended lease taken by an attorney in writing; but upon proof that some other clauses were agreed on between the parties at the same time, the Court decreed that those clauses should be put into the lease, notwithstanding the counsel on the other side strenuously insisted on the statute of frauds.

And if either party object to a conveyance, on the ground of a term of the agreement being omitted, and the other party promise to rectify it, whereupon the deed is executed, a specific performance of the promise will be enforced.

Thus in Pember v. Mathers,(z) a bill was filed for a specific performance of a parol agreement by a purchaser of a lease under written conditions, to indemnify the vendor against the rent and covenants; and it was objected, on the part of the defendant, that the evidence was inadmissible, upon the ground, that where the parties have entered into a written agreement, no parol evidence can be admitted to increase or diminish such agreement. The rule, Lord Thurlow said, was right; but where the objection was originally made, and promised by the other party to be rectified, it comes amongst the string of cases where it is considered as a fraud. Then the evidence is admissible. There being some doubt as to the fact, Lord Thurlow ordered it to go to law upon an issue, whether there was such a promise on the day of the execution of the agreement. Upon the trial, the jury found there was such a promise; and the plaintiff had a decree for a specific performance(112).

(y) 9 Mod. 88, cited.

(z) 1 Bro. C. C. 52; see 14 Ves. jun. 524.

(112) See Christ v. Diffeback, 1 Serg. & Rawle, 464.

So we have before seen, that where it is stipulated that the agreement shall be reduced into writing, and either party fraudulently prevents the agreement from being (*)put into writing, equity will perhaps relieve the injured party (a).

And it is perfectly clear that where fraud is distinctly proved, or the jury infer it from the circumstances, an agreement is invalid at law, as well as in equity(b); but the reducing the agreement to writing is, in most cases, an argument against fraud.

But it must be remarked, that a deed will not be rectified in equity on the ground of mistake or fraud, to the prejudice of a bona fide purchaser, without notice.

Thus in the case of Thomas v. Davis(c), although the lands passed at law, yet as the mistake was clearly proved, the words were restrained as between the persons claiming under the wife, whose estate was comprised by mistake, and the heir of the husband, to whom the estate had passed by the error; but the same equity was not administered against the mortgagee, who was left in possession of the legal right which the generality of the conveyance had invested him with(113).

(a) Vide supra, p. 114.

(b) Haigh v. De la Cour, 3 Campb. 319; Emanuel v. Dane, 3 Campb. 299; Solomon v. Turner, 1 Stark. 51.

(c) Supra, p. 155; Reg. Lib. B. 1757, fol. 33, 34; 1 Dick. 301.

(113) The rights of creditors, particularly, will be protected. M'Teer v. Sheppard, 1 Bay, 461. Fitzpatrick v. Smith, 1 Des. 340. See Strong v. Glasgow, 1 Car. Law Rep. 279. Hawkins v. Hawkins, Id. 496. Ross v. Norvell, 1 Wash. 14. Although parol evidence cannot be received to contradict an instrument in writing, as between parties and privies; yet, the rule does not apply to strangers, who have an interest in knowing the truth. Overseers of Berlin v. Overseers of Norwich, 10 Johns. Rep. 229.

In Pennsylvania, where equity is a part of the law, fraud is a defence in all cases. Therefore in Stubbs v. King, 14 S. & R. 206, where the action was brought to recover the purchase money stipulated for in a