Page:United States Reports, Volume 1.djvu/437

426 

1789.

the witnefs faid, that they had agreed to fettle the eftate in a different manner.

The motion for a new trail was made on two grounds:– 1ft, Becaufe the parol evidence ought not to have been admitted to go to the Jury : And, 2dly, Becaufe the Jury gave a verdict againft evidence.

The having ftated the cafe, and the objections to the verdict, proceeded to deliver the opinion of the Court in the following manner:

M‘KEAN, Chieƒ Juʃtice.– The Court have heard the reafoning in fupport of the motion, and the arguments againft it ; and, upon a perufal and full confideration of the cafes cited on both fides, out opinion is unanimoufly formed in favor of the Plaintiff.

In fupport of the firft ground affigned for a new trial, it has been urged, that the parol proof contradicted the deed given by the witneffes themfelves ; that in Pennʃylvania lands muft pafs by deed, will,  or fome writing  figned by the parties, or by the act and operation of law; that a declaration of ufes muft be by deed; that no parol evidence fhould be admitted refpecting an agreement, or deed, which may add to diminiʃh, vary, or contradict the agreement, or deed, but only to explain it ; and that John Saltar and his wife were eftopped from faying any thing againft their own deed. In corroboration of thefe pofitions, the following books have been cited: Crowp. 47. 260. 2''Black. Rep.'' 1250. 335. 327. 2Atk. 383. 3 Atk. 388. 2 Wils. 506. 3 Wils. 275. ''Bac. Man.'' 90. Regula. 23. 1 ''Black. Com.'' 78. 79. 2''Black. Com.'' 13. 3Bl.Com. 439. ''Bull. N.P.'' 357. 5''Bac. Abr.'' 362. ''Brown Chata. Caʃes.'' 92.94. 2Bac.Abr. 309. 1 Wils. 111. Fitzgib. 213. 1Bac.Abr. 75. 1 State Laws. 462. 3.

Since the ftatute of frauds and perjuries in England, and the act of Affembly for preventing frauds and perjuries in Pennʃylvania, it has indeed, been a general rule, that no eftate or intereft in lands fhall pafs but by deed, or fome inftrument in writing, figned by the parties; and that no parol proof fhall be admitted to contradict, add to, diminifh, or vary from a deed or writing. But, it is certain, that there are feveral exceptions to this rule, and many cafes my be found in which parol has been admitted, notwithftanding writings have been figned between the parties. For inftance, where a declaration is made beƒore a deed is executed, ʃowing the deʃign with which it was executed, the decifions in the Court of Chancery have been grounded upon parol proof ; and in the cafe of Harvey v. Harvey 2 ''Chan. Caʃes'' 180. three fucceffive Chancellors decreed, on the parol proof or a fingle witnefs, againft a deed of fettlement. See Fitzg. 213.214.

In cafes of ƒraud, and oƒ truʃts, though no truft was declared in writing, exceptions have likewife taken place: 1Vern. 296. Thynn v. Thynn. As, where an abʃolute deed was given, but intended to be