[Present, Chancellors Rvteedge and James.]

Nov. 1808.

#### The Administrator of Charles M. Picton, vs. Angus Graham, and J. Walker.

Farol evidence to vary a written deed, not permitted to prevail against the positive answer of the defendant, denying the charges of *593Inserting provisions in the instrument different from those agreed on, and of surprise on the complainant, in tbe execution of thedeed.

The complainant could have read the deed, and it was his own folly if he did not read it, or signed what he did not understand ; and no proof of fraud in the case. - '

THE original bill was filed to sfet aside a deed of marriage settlement, or to correct and reform tbe *deed;*some of tbe provisions contained therein, having been obtained by fraud, of inserted by mistake, as was alleged.

This was a bill of revivor, to revive that which had been, filed by Mr. Picton, and who died soon after.

The bill stated that William Byers executed his last will and testament on the 25th May, 1V83, by which he bequeathed a certain proportion of his estate to his wife, and the remainder to his only child Elizabeth Byers, and her heirs, Win. .Byers died on the *1st*June, 1793, leaving his will in full force ; but his wife died before him *;*so that E, Byers became entitled to the whole estate of her said father.

That Mrs. Elizabeth Walker bequeathed to her granddaughter, the said Elizabeth Byefs, several negro slaves; but if the said E. Byers should die, without lawful issue, then the said slaves were to go to the testatrix’s sons R. Barlow, Angus Graham, and John Walker.

That a marriage being about to take place between C. M. Picton, the complainant’s testator, and the said E. Byers, her maternal uncles Angus Graham and John Walker, requested the said Picton to- agree to a marriage settlement of hef property, to be made conformable to the wills of her father and grandmother; to which he readily consented * and they undertook to prepare the same.

That on the evening of the marriage, and but a few minutes before the ceremony, Angus Graham tendered to the said C. Picton for his signature, a deed of settlement, which he had caused to be drawn up ; and the said Pic-ton supposing it to be properly drawn, signed it without reading it.

*594That the marriage took effect immediately after, to' wit, on the 8th May, 1801, his wife being then about 18 3re‘*rs aSe- That she died on the 8th June, 1802, under the age of 21 years, but leaving- a female child, who died 12 days after its mother : whereupon all the property which had belonged to the said. Elizabeth, became vested in said C. Picton, her surviving husband.

That the deed of settlement,-executed as abovemention-ed, was kept by the said Angus Graham', who never recorded the same, nor communicated its contents to' said Picton, till about one year after the death of his said wife., That by a clause in the said settlement, inserted by'the procurement of the said Angus Graham and John Walker, it is provided that if the said E. Byers should die before the said C. Picton, her then intended husband, leaving no issue, or leaving issue, and such issue should die before the age of 21 years, and unmarried, the property included in the settlement, should vest in the said Graham and Walker. The complainant charges that such clause was introduced fraudulently, without the knowledge or consent of the said C. Picton, and contrary to the terms verbally stated to him before the marriage, to wit, that the settlement should be made conformable to the wills of the father and grandmother of said E. Picton.

That the said Graham and Walker have possessed themselves of ail the property in question, and keep the same as their own. The bill prays discovery, and an account, and such relief as complainant is entitled to.

To this bill the defendants put in the following answer: The defendants admit that William Byers made his last will and testament, by which he bequeathed his property as complainant states, and died, leaving his said will in full force, and leaving Elizabeth Byérs, his only child. His wife died before him.

They admit that Elizabeth Walker made the will attributed to her, and died leaving the said will in full force. And they have been advised, that under the said will, the *595property devised to the said Elizabeth Byers, in the events of her dying unmarried or under age, or without leaving issue, which should attain the age of maturity or be married (which event has occurred) would devolve upon themselves absolutely. They admit the solemnization of the marriage between the complainant and Elizabeth Byers, who was about *V7*years of age. That exhibit C. isa true copy of the deed of marriage settlement; but they deny the manner in which the complainant says the deed was executed, and aver that the .complainant was informed three weeks before his marriage, that the property belonging to his wife, was to be settled agreeably to the provisions afterwards inserted in the said marriage settlement, assented thereto, and was about eight days before the marriage specially informed by one of the defendants of the contents thereof, with which he confessed himself pei'fectly satisfied.

The defendants deny that the wills .of William Byers and Elizabeth Walker were ever considered or agreed upon to form the grounds of the said settlement, but were adverted to merely to collect from them a description of the property. They deny that the settlement was signed by the complainant without reading it, averring that before he signed it, he perused it with care and attention j sometime after which the ceremony was performed.

The defendant^ admit that the deed was not recorded until the time mentioned in the *bill;*and they allege various reasons for its not having been doné earlier; and declare that had a sight of this deed beep required at any time either by the complainant or anyone authorised by him, it would readily have been produced. They admit their present possession of the property which they claim as their own.1

At the hearing, the wills of Mr. Byers and of Mrs. Walker, and the deed of settlement were produced in. evidence.

The following testimony was also given

*596Mrs., Collins. About three. weeks before the marriage^ p/[r. callcd5 aJJCl sa¡d to Miss Byers, it was very ProPer to have a marriage s<-t demerit. She said nothing. He then addressed himself to the witness, who said it was what she wished, to have a settlement of the property tq hcr an¿ Her issue. He said it was impossible it could be made exactly in that way, and that it was a matter of form. Miss B. said nothing. — Is sure he had no previous conversation with her. He said it was to be according to his mothers will. She never heard any thing from Graham in the first conversation, implying that Walker and Graham were to have any thing. She was present at the execution of the deed. Graham, who offered it to Picton, said it was only a matter of form, and it could not affect his rights, Picton said if he read it, he would not understand it. Miss B. who had not been anxious for a settlement, was in another room; she hesitated a moment, but she stept forward to sign. This was immediately before the marriage, just before the minister came. Believes Mr, Picton looked at one part, but cannot say whether he read the whole.

Mr. Verree, Was present at the marriage of Picton — < saw tbe deed handed to Picton; be objected to it, not knowing the contents, Graham said there was nothing in it to injure him, he need not hesitate to sign it; and he signed it. He did not read, he thinks, from the short time he had it in his hands, ten lines. He asked for the contents of it. Next day he mentioned to witness he did not know the contents. The deed was offered immediately before the ceremony. He turned over to one *particular*part in which the will was mentioned. Dont know whether he said agreeably to the will, or which referred to the will. Miss B. asked no questions when she signed the deed. She appeared to be frightened.

Mr. Hodgson. Was present when this deed was executed by Mr. Picton — not a quarter of an ho.ur between tbe signing the deed and the ceremony; but did not. actually *597jjee Picton sign the deed, or any other person. Never knew *the*contents of the paper till long after.

Mr. Walker palled on witness on Sullivan’s Island, to prove the deed. It was proved on 7th June, 1803.

Letters were also produced, which shewed Mr. Graham’s consent to the marriage of his niece.

The other subscribing witness to the deed was dead.

Mr. DRayton for the complainant,

contended that the deed in question must be set aside, on the ground of fraud or mistake. That the deed was executed by the com* plainant without a knowledge of its contents; it being proved that he never read it, confiding in the probity and representation of Graham, the uncle' of his intended wife,, who stated that the deed of settlement contained nothing to his injury. It was produced for execution immediately before the marriage ceremony, which was no fit time for the examination of the provisions of the deed: nor were they examined. That this confidence was abused; for the deed did contain a limitation to the injury of the intended husband, unusual in its nature, and not conformable to the provisions of the will of the father or grandmother of Miss Byers, to which Mr. Graham had alleged the settlement was to be conformed. These wills contain no limitation similar to that introduced into the deed.

This was a fraudulent misrepresentation, on which the court will set aside the deed.

The husband was kept ignorant of the' contents of the deed, which might have alarmed him, and induced him to obtain its correction pr reformation in the life time, and by the authority pf his wife. The uncles kept it secret without recording it till her death, and thus rendered it a void instrument, as it regarded creditors, and powerless as to the main, object of marriage settlements, the protection of the property for the wife and children; and powerful, only to the injury of the husband’s marital rights.

The settlement included'not only what Miss Byers derived from the wills of her father and grandmother, but al*598so what was absolutely her own, on the death of her mo-then ' .

The answer of the defendants is not entitled to credit -with the court, for it alleges what is incorrect in several particulars; and this takes away all credit from it.

states that the deed was deliberately read1 over by Mr. Picton : whereas two witnesses proye that he never read it at all.

The not reading the deed is a badge of fraud. In the peculiar circumstances of delicacy in which the parties were placed, it was incumbent on the defendants to have insisted on the deed being read, and perfectly understood.

The deed thus prepared, under the instructions of the uncles, without the privity of the intended husband of their niece, was fraudulent for want of. consideration. There was no manner of consideration-for thus inserting a clause of an unusual nature, restricting the marital rights in the property, and for the benefit of- these uncles. See'White v. Hussey, in Prec. in Chañe, p. 13. . Bennet v. Vade, and others, 2 Atk. 324, *7,*

But if there were no proofs of fraud, the court would relieve on the ground of mistake. Assent is necessary to the completion and validity of all contracts. But there cannot be an assent where the party is ignorant of the con-,tents of the paper he subscribes. *%*Bro. C. C. 150. Powell on Contracts, 134.

The court relieves most readily, in cases where a guardian, or one standing and acting in that relation, takes an advantage of the confidence of his ward, and turns it to his own advantage. 2 P. Wms. 205. See Cole vs. Gibson *;*1 Ves. 503, Turton v. Benson *;*1 P. Wms. 496, 8; *3*P. Wms. 129, 374; 2 Ves. 547 ; 1 P. Wms. 118.

Parol evidence will be received to explain such frauds or mistakes.. Sugden 110, *118; 1*Bro. C. C. 341 *; Í*Bro. C. C. 92,3.

Mr. Cheves for the defendants.

There is no ground for the charge of fraud in this case-. *599If there be any thing wrong,- it is by mistake, which is essentially different. ■

The party cannot allege He did not read the deed, (Sugden 119,) where there is no restraint, or contrivance to *prevent;*where he can read and undertakes' to read for himself. And it is in proof that he took up the deed, and began to read it / there was no restraint oii him. If he did not read the deed, it was his own fault. Here theft is a deed regularly executed by the parties interested: He who alleges that it was intended to hirte made á different deed, must prove that intention. But the proof here is not sufficient to establish that. Courts of justice must abide by the written acts of the parties, unless shewn clearly to have been erroneous by fraud or mistake. The' concurrent intention of all the parties as to the alleged agreement, differing from the deed itself, must be proved, and that by irrefragable evidence. The courts receive parol evidence on this subject with great hesitation and reluctance. See Sugden 108, 9, 110, 117,- 1Í9;

It is true it is laid down, that if two persons employ *d*third person to'draw up minutes of their intention, and such person does not draw them accordingly, the case may be relieved, because it is a kind of fraud. Sugden 110. And in the case of Shelburne v. Inchiquin, 1 Bro. C. C. 341, the Lord Chancellor Thurlow, says, it is impossible to refuse, as incompetent, parol evidence which goes to prove that the words taken' down in writing, were contrary to the concurrent intention of all parties ; it is the only way of explaining latent ambiguities *; but it must be irre-fragable*evidence, and it must be an essential ingredient to any relief under this head, that it should be on an accident perfectly distinct from the sense of the instrument. Lord Chancellor Eldon, in observing on these dicta, (Marquis of Townsend v. Strangroom, 6 Vesey, 328 *;*Sugden, 108, 9,) said that Lord Thurlow seemed to say the proof must satisfy the court what was the intention of all parties *;*and he added it must never be forgotten to what extent the de*600fendant, one of the parties, admits or denies the agreement • i • m his answer.

^ irnham v. Child, 1 Bro. C. C. 92, 3, parol evidence was refused to be received, to prove that part of the agreement was left out of the deed, it not being charged to have been omitted by fraud. •’ In that case, Lord Chancellor Thurlow laid down the general rule to be firmly established, that pai'ol evidence is not admissible to contradict, or even vary a deed : but that in cases of imputed fraud, it is admissible ; for the rule of evidence is not subverted, if there be clear proof of fraud ; *but it must be quite dear.*

As to mistake of accident, if that be admitted, the court would not overturn the rule by varying the deed, for it would be an equity dehors the deed. Then it should be proved as much to the satisfaction of the court as if it were admitted. The difficulty of this is so great, that there is ho instance of its prevailing against a party insisting that there was no mistake.

And surely the case of an alleged fraud, in the execution of a deed, must be proved at least as clearly as in a case of mistake.

The pretence of a party neglecting to read the instrument, when he is capable of doing so, and there is nothing to prevent him, as a ground for breaking through the rule, forbidding parol evidence, is not listened to favorably. It is his own folly-1 — Where a lessor drew a lease for one year, instead of 21 years, and then read it for 21 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. See Skinner’s Reports, 159; Sugden, 117. See also Harwood *v.*Ellis, 2 Vesey, 195.

It must be observed that there is no proof át all of the terms and provisions alleged in the bill to have been agreed on. The answer denies the terms stated *;*and the answer is not sufficiently contradicted. The presumptions arising from the hasty execution of the deed, from the not *601recording it during the life of Mrs. Picton, and other circumstances relied upon, do not amount to that proof required to shake a formal deed regularly executed.

Chancellor James

afterwards delivered the decree of the court:

The Judge stated the case fully from the bill and answer, and then proceeded as follows :

To prove that the marriage settlement was obtained by fraud, the corhplainant, the administrator, has produced three witnesses; Mrs. Collins, Mr. 'Verree, and Mr. Hodgson. Tlie first, Mrs. Collins, has said much respecting conversations with Mrs. Picton before the marriage* but all that she appears to recollect about Pictbn was, that he said-when the settlement was offered to him for his signature, “ that if he did read it, he would not understand it,” and that Graham said, “ it was matter of fornru}? Mr. Hodgson, one of the witnesses to the deed, was called éut of the piazza about a quarter of an hour before the ceremony to witness the deed, but saw no one sign it, and heard Graham say, “ it was matter of form.” Mr. Ver-ree was present at the marriage of Pictonwhen the settlement was presented to him, he objected to it, and Graham said there was nothing in it to injure him, and that hé might sign it. Picton took up the deed, but had not timé to read ten lines, and witness does not thiiik he could havé read more. The next day he said he had a good opinion of Graham, and that he did hot think he would injure him.” So far goes the testimony of three witnesses, who were to establish a fraud sufficient to overthrow a solemn deed in writing, entered into by the parties. But this evidence has been contradicted by defendants answer, in which they state, that “ Picton was informed three weeks before the marriage of the provisions to be made in the settlement, and that before he signed it, he perused it with care and. attention.” Verree indeed says, ■“ that Picton could not have read ten lines ;” but here is the answer of two defendants to contradict him, and the court must give that *602weight to the answer which equity is accustomed to do.— jf picton could not understand the settlement, he might in ^lree weeks have applied to counsel, who could have explained it for him ; and if it has been injurious to him, it was ^'Is own fault that caused *it;*for why did he sign an instrument which he did not read, and could not understand' ?

Complainant stated further in his bill, that defendants took into their possession all the property bequeathed to Mrs.'Picton, under the will of her father and grandmother ; but defendants deny that they ever were possessed of any of the property bequeathed to complainant’s wife *;*so that as to this, charge, .the bill is not supported by any evidence, and is denied by the answer. Therefore under all the circumstances adduced in evidence, let the complainants bill be dismissed with costs.