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lessor, and the Queen's right to the wardship of the heir. And that where an estate passes, and the 1 Inst. 145 a. donee or grantee has a right of election, such right descends to his heirs or executors.

Gunter,

206.

2 Roll. Ab. 787. pl. 7.

42. A lease was made to A. for 20 years, rendering Darrell v. rent. A. entered; afterwards the lessor for money W. Jones, paid by B., demised, granted, and to farm let to B. the same land for four years from the date of the said indenture; and afterwards enfeoffed by deed the second lessee, before he had elected to take the lease by way of bargain and sale, or otherwise, and before any rent paid to him: and neither upon the deed of feoffment, nor after, did he declare what way he took the lease; nor had he any attornment from the first lessee and therefore Jones, Just. was of opinion, that B. had election to take it by demise at common law, or by way of bargain and sale, executed by the stat. 27 Hen. VIII., according to Heyward's and ante. Fox's case but till election, he should take it as a lease at common law; and if there was no attornment, it was as a future interest: but if he had received the rent of the first lessee, this had been an election in law to take it by way of bargain and sale.

ments ad

Deeds.

43. It is laid down by Jenkins, 166, that against a No Averconsideration alleged in a deed, or an use declared, mitted no averment to the contrary can be received. So of against indentures upon fines and recoveries, where the fines and recoveries pursue them. Nihil est tam naturale quam quilibet dissolvi, eo modo quo ligatur. Contract by contract; deed by deed; record by record; parliament by parliament. And since the statute of frauds, by which all contracts for lands must be in writing, no averment founded on parol evidence, which tends to contradict or vary a written agreement is, in general, admissible.

Meres v.
Ansell,

3 Wils. R.
275.

Preston v. Merceau, 2 Black. R. 1249.

44. Upon a motion for a new trial, the facts were, that an agreement in writing was entered into, by which it was stipulated that the grass and vesture of hay, of a close called Boreham Meadow, was to be taken by one Ansell. The subscribing witness to the agreement deposed, that when the written agreement was made, it was also agreed by the parties by parol, that Ansell should not only have the hay of Boreham Meadow, but also the whole possession and soil thereof, and of another close called Millcroft. Lord Mansfield admitted this evidence; but the Court of Common Pleas said," We are all clearly of opinion, that no parol evidence is admissible to disannul, and substantially to vary, a written agreement. The parol evidence in the present case totally annuls, and substantially alters and impugns, the written agree

ment."

45. An action on the case was brought for the use and occupation of a house, of which, it was agreed in writing, that a lease should be let by Christiana Preston to Abraham Gamage, for 21 years, at 26 l. per annum. Gamage died, and made Merceau his executor, who paid into court 261. for one year's rent. On the trial the plaintiff offered to show by parol evidence, that besides the 26 l. per annum, the defendant had agreed to pay 21. 12 s. 6d. a year, being the ground-rent of the premises, to the ground landlord; but no evidence was offered of the actual payment of such ground-rent during the testator's life; without which, Ld. Ch. Just. de Grey thought such parol evidence inadmissible, and nonsuited the plaintiff. Upon a motion to set aside the nonsuit, Mr. Justice Blackstone declared his opinion that it was right to reject this evidence. That courts should

be very cautious in admitting any evidence to supply or explain written agreements, else the statute of frauds would be eluded, and the same uncertainty introduced, by suppletory or explanatory evidence, which that statute had suppressed in respect to the principal object. It never ought to be suffered so as to contradict or explain away an explicit agreement; for that was in effect to vary it, Here was a positive agreement that the tenant should pay 264. Should the court admit proof that this meant 287. 12s. 6d.? What was it to the tenant to whom the rent was to be paid, so as he was obliged to pay more than his contract expressed. The court could neither alter the rent, nor the term.

Tit. 7. c. 1.

19

46. The same doctrine is established in equity; 2 Atk. 384. Treat. of Eq. for Lord Hardwicke has said, that to add any thing to B. 1. c. 3. an agreement in writing, by admitting parol evi- §11. Tinney v. dence, which would affect land, was not only contrary Tinney, to the statute of frauds, but to the rule of the common law, before that statute was in being; and it has been laid down by the Court of Exchequer, that Binstead v. where there is an agreement in writing executed, no evidence can be given to supply any defect in it, which was intended to be part of it, but not inserted 1; for that would be to evade the statute of frauds, and introduce more perjury.

Coleman,

Bunb. 65.

5

Rep. 68 b.

47. There are, however, some cases in which But admitted in support of averments, founded on parol evidence, of collateral them. facts, tending to support or explain a deed, have been admitted. Thus, in the case of a bargain and sale to uses, an averment, that a pecuniary consideration was given, might have been made before the statute frauds, and is still allowed; because such an averment stands with the deed.

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of

ante, c. 9. § 23.

1 Rep. 176 a.

2 Roll. Ab.

786. N. pl. 1,

Bedell's Case,
ante, c. 10.
$ 17,

ante, § 45.

The King v. Scammenden,

4 Term R. 474.

The King v.
Laindon,
8 Term R.
379.

And where there is an Ambiguity.

Harding v.
Suffolk,
1 Rep. in
Cha. 74.

48. In the case of Preston v. Merceau, Sir W. Blackstone observed, that with respect to collateral matters, parol evidence might be admissible: the plaintiff might show who was to put the house in repair, or the like, concerning which nothing was said; but he could not by parol evidence shorten the term to fourteen, or extend it to twenty-five years; or make the rent other than 267. a year.

49. In a modern case, the consideration expressed in a deed of conveyance was 28 l., but parol evidence was admitted to prove that 307. was the real consideration; and Lord Kenyon said, it was clear that the party might prove other considerations than those expressed in the deed; it was permitted in all cases of covenants to stand seised to uses.

50. In a subsequent case, parol evidence was received, to prove that a sum of money was paid as an apprentice fee; though no mention of that circumstance was made in the contract of apprenticeship :: and Lord Kenyon observed, that this parol evidence was not offered to contradict the written agreement, but to ascertain an independent fact, and therefore it was properly received in evidence.

51. In the case of an ambiguitas patens, that is, an ambiguity which appears upon the face of the instrument, no averment is allowed; but in the case of an ambiguitas latens, an averment supported by parol evidence is admissible. Hence Lord Bacon's maxim, 23. Ambiguitas verborum latens verificatione suppletur : nam quod ex facto oritur ambiguum, verificatione facti tollitur. Thus if a feoffment be made of the manor of S., and the feoffor has a manor called North S., and another called South S., parol evidence will be admitted to show which manor was meant.

52. This doctrine is not altered by the statute of frauds; it being now held that parol evidence is admissible in all cases of latent ambiguities. And in the case of Meres v Ansell, the Court of Common Pleas ante, § 44. said, that in some cases of deeds, where there were two Johns named, or two black acres mentioned, parol evidence might be admitted to explain which John, or which black acre, was meant.

53. In a modern case Lord Thurlow said" If 1 Bro. R. 338. there be a latent ambiguity, it must be explained by parol evidence; for though the words do not prima facie import an ambiguity, yet if such ambiguity can be made to appear from parol evidence, it must be admitted to explain it, as well as to raise it: but if words have in themselves a positive precise sense, I have no idea of its being possible to change them; and I take it to be an established rule that words cannot be changed in that manner."

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Treat. of Eq.

54. Where it is alleged in a court of equity that material part of an agreement has been omitted by fraud; or that the intention of the parties has been Mistake. mistaken, and misapprehended by the drawer of the B. 1. c. 3. deed; parol evidence will be admitted to fraud or mistake.

prove such

§ 11.

Deed ope

55. It is a rule of law that a person shall always be Where a estopped by his own deed; that is, he shall not be rates as an allowed to aver anything in contradiction to what he has once so solemnly and deliberately avowed.

Estoppel.

1 Inst. 352 a.

Plowd. 434.

56. Thus if a person makes a lease for years, by 1Inst. 47 b. indenture, of lands wherein he has nothing at the time, and after purchases those lands, the lease will be good because the lessor is estopped to say he did not demise them. If however such a lease be made by deed-poll, the lessee will not be estopped from averring that the lessor had nothing in the land at the

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