# Thompson’s Lessee v. White

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The Leffee of THOMPSON et ux. verʃus WHITE.
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The cafe, upon the evidence, was as follows:– Dorothy Gordon, being feized in fee of the moiety of the premiffes in queftion, ​
1789.
intermarried with Laurence Saltar, and, having lived long with him, and no profpect of children, fhe was defirous of making a provifion for an only fifter of the whole blood, to wit, Mary, one of the Leffors of the Plaintiff, whofe hufband, John, the other Leffor, was confiderably reduced in his circumftances. It then appeared, that Mrs. Saltar, while upon a vifit, with her hufband, to his brother, John Saltar, who refided at fome diftance, was taken fick; and, after a converfation relative to her eftate, it was agreed by her hufband and herfelf, that it fhould be fettled on them for their lives, and for the life of the furvivor of them, and, afterwards, that it fhould go to her fifter, the faid Mary Thompʃon, for life, and the heirs of her body lawfully begotten ; and for want of fuch heirs to the children of her three fifters of the half blood. Mr. Saltar, accordingly, procured a deed of the above effect to be drawn by a Conveyancer in Philadelphia: but the fecond remainder being expreffed to be, “ for the iʃʃue oƒ the bodies of the three half fifters, ” one of whom was unmarried, Mrs. Saltar, when the inftrument was read to her, though the expreffion indelicate with refpect to her three half fifters, and, for that reafon, perfifted in refufing to execute it, notwithftanding all the perfuafion of her friends. Upon this refufal, her hufband propofed to her, that a deed fhould be drawn from them to his brother John, who, with his wife, fhould reconvey the premiffes to him (the faid Lawrence) and herfelf, as jointenants, in fee; and he promifed that as foon as he got home, he would make his will, or by fome other means, fettle the eftate in the manner that they had before projected. Mrs. Saltar hefitated at this propofition ; but, on her fifter, Elizabeth Saltar's telling her, that “ ʃhe might rely upon him ; ƒor, iƒ there was a man in the world; who could be truʃted in ʃuch a caʃe, it was him ; ” and on her hubfand's requefting her to comply, declaring, that “ iƒ there was ƒaith or truth in man, he would honeʃtly perform what he again promiʃed : ” fhe executed the deed to John Saltar, who, with his wife, reconveyed the eftated, according to the previous ftipulation. Mrs. Saltar died in the year 1781, about fix months after the deeds were figned ; and her hufband died, interftate and without iffue, about eighteen months after her decade.– Mr. Lawrence Saltar always, during his life time, managed the eftate that had been his wife's, as if it belonged to the Leffors of the Plaintiff: In his laft ficknefs, indeed, when near expiring, he told his brother, that he was very uneafy on account of his leaving no will ; and foon after this declaration he lofts his reafon.
The preceding facts were proved by John Saltar and Elizabeth, his wife ; together with the confeffion of the Defendant, that the Leffors of the Plaintiff had the title in equity, although he had it in law. There was, indeed, a contradiction, in fome refpect, of the cafe of the Leffors of the Plaintiff, in the teftimony of Abel James, who related a converfation which he had with Lawrence and Dorthy Saltar a few days before the deeds were executed, at which time ​
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 chief justice 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. 2Black. 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. 2Black. Com. 13. 3Bl.Com. 439. Bull. N.P. 357. 5Bac. 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 in truſt, on parol proof of the party's intention, the truſt was decreed. 2 Vern. 288. Hampton vs. Spencer; et e contra. And the ſame deciſion was pronounced, the caſe of an agreement, or truſt, being confeʃʃed by an anſwer, although ſuch truſt had only been declared by parol. Ibid. 294. Bellaʃis v. Campton. Prec. in Chen. 208. Croyʃon v. Banes. So, where a party is drawn in, by aʃʃurances and promiʃes, to execute a deed, to enter into a marriage, or to do any other act, and it is ſtipulated that the treaty or agreement ſhould be reduced into writing; although this ſhould not be done, the Court, if the agreement is executed in part, will give relief. A man treating for the loan of money on a mortgage, it was agreed that an abſolute deed ſhould be given by the mortgagor, and a deed of defeazance executed by the mortgagee; the abſolute deed being given, the mortgage refuſed to execute the defeazance, but the Court of Chancery interpoſed to inforce juſtice agreeably to the agreement of the parties. Prez in Chan. 103. 4. Skinn. 143. 9 Mod. 80. In another inſtance, where an abſolute conveyance is made for a certain ſum of money, and the perſon to whom it is made receives intereſt for the money, the receipt of the intereſt will be admitted to explain the nature of the conveyance. Prec. in Chan. 526. 1 Wils. 620. S. C. 2 Freem. 268. 285.
There are other authorities which bear a ſtrict analogy to the caſe before us. A copyholder, intending to give the greateſt part of his eſtate to his godſon, and the reſidue to his wife, was perſuaded by the latter to nominate her to the whole, declaring that ſhe would give the godſon the part deſigned for him: After her huſband's death ſhe refuſed to perform this promiſe, and pleaded the ſtatute of frauds and perjuries, but the decree was againſt her. Again; A father being about to make a will to provide for his younger children, is prevented by his ſon and heir apparent's promiſing that he would make the proviſion for his brothers and ſiſters: The ſon and heir afterwards refuſed to fulfill this engagement; but, on an application to the Chancellor, the decree was alſo againſt him. So, where the iſſue in tail perſuades the tenant in tail not to ſuffer a recovery, in order to provide for younger children, upon an aſſurance, that the tenant in tail would provide for them himſelf, which he afterwards refuſes, equity will compel him to do it. Prec. in Chan. 3. Deviniʃh v. Baines. 2 Freem. 34. Chamberlaine. v. Chamberlaine.
A voluntary ſettlement is made by A. to B. who, afterwards, without any conſideration agrees to deliver it up: This agreement ſhall bind in equity; for a voluntary ſettlement may be ſurrendered voluntarily. Prec. in Chan. 69. Wenworth v. Deverginy.
The Statute and Act of Aſſembly were made to prevent frauds, as well as perjuries; they ſhould be conſtrued liberally, and beneficially expounded for the ſuppreſſion of cheats and wrongs. Thus, where there has been a fraud in gaining a conveyance from another, the grantee may be conſidered as a mere truſtee. Barnard in Can. 388. Lloyd v. Spillet.
1789.
}In the cafe now under confideration, Mrs. Dorothy Saltar was feized in fee of the premifes ftated in the ejectment ; and had fhe made no conveyance, her fifter, Mary Thompʃon, would have been her heir at law; but her huband, whom fhe loved, wifhed to enjoy the eftate during his life, and fhe defigned that her fifter, and her fifter's children fhould have the eftate uncontrouled by her hufband. With this view the deeds were executed ; and, if the folemn promife and agreement of Lawrence Saltar is not to be enforced, his heir at law will have the eftate, contrary to the intention of parties.
The queftion then is, whether the engagement of Saltar, not being in writing, although it concerns lands of inheritance, is void by the act of Affembly for preventing frauds and perjuries?
We are of opinion, that it is not ; and that the parol evidence was proper to be admitted upon the trial of the caufe. Here was a breach of truft in Lawrence Saltar, a fraud in law, which is not within the act. This is the reafon of our judgment ; a reafon warranted by a due conftruction of the act, and an attentive confideration of its frame and defign ; which was, not only to guard againft perjuries, but, alfo, as I have already obferved, againft frauds. It is to be remembered, that there is no purchafor, bona ʃide, for a valuable confideration, without notice, in the prefent cafe ; the defendant claims under the heir at law of Lawrence Saltar; he ought, therefore, to perfon what Lawrence fhould have performed ; and equity will confider that as done, which ought to have been done ; Grounds, &c. oƒ Law and Equity. 75. Every man's contract (whereever it is poffible) fhould, indeed, be performed as it was intended.
The numerous cafes cited, as well as fome determined in this Court, both before and fince the Revolution (feveral of which are in point) all turn upon the fame principle, and are uniformly in favour of the Plaintiff : And fo many uniform, folemn decifions, ought to be always of great weight and confideration , that the law may be certain. I am glad, indeed, that the prefent motion has been made, becaufe it has afforded an opportunity of full deliberation on the fubject, and of fettling it upon a fatisfactory and permanent foundation.
With refpect to the ʃecond objection, we are clearly of opinion, that the verdict was given agreeably to weight of the evidence.
And, upon the whole, direct, that judgment be entered for the Plaintiff.