constant practice of conveyancers, on the examination of titles, to receive as evidence recitals of thirty or forty years back, if the possession has been according to them, and there are and there are corroborative instances strengthening the presumption that the facts were according to such recitals. (a) And if the deeds themselves are destroyed, recitals of them in other deeds will be admitted as evidence. (b) And as to a particular fact, they will operate by estoppel, although they will not have this operation as to a general statement. (c) In a late case, (d) where a vendor insisted that he was not bound to establish by extrinsic testimony the truth of recitals in deeds of 1793, Lord Gifford, M. R. was of opinion that these recitals, whatever effect they might have between the parties to the deeds, could not, as against third persons, be any evidence of the facts recited in them. If evidence had been given that possession had followed and accompanied the matters therein recited, that enjoyment would have been a strong circumstance to prove that the facts actually were as they were stated; but there was not the slightest proof of any possession from 1737 to 1793 in those through whom the title was traced. (e) And where the rights of creditors are concerned, recitals in a deed of 1793 will be held to be no evidence. (ƒ)

A

(a) Dundas a. Dutens, 1 Ves. jun. 196. Cordwell v. Mackrill, Amb. 315.

(b) Ford v. Gray, 1 Salk. 285. Anon. 12 Vin. Ab. 223. pl. 15; Comb. 341; 6 Moo. 44. Marchioness of Annandale v. Harris, 2 P. W. 432; Cowp. 595. Skipwith v. Shirley, 11 Ves. 64.

(c) Shelley v. Wright, Willes, 9. Rees v. Lloyd, Wightw. 123. Holmes v. Ailsbie, 1 Madd. 551.

(d) Foot v. Clarke, 1 Russ. 601. (e) See also Prosser v. Watts, 6 Madd. 59, cited ante, p. 66.

(ƒ) Battersbee v. Farringdon, 1 Swanst. 106.

Although letters patent under the great seal are of the highest authenticity, (a) yet recitals, in such letters, of facts which will admit of higher proof, will not be admitted in evidence, unless the grant be founded upon such recital, as the consideration for the grant. (b)

(a) 3 Inst. 173. Page's case, 5 Co. 53. Gilb. Ev. 14.

(b) 2 Roll. Ab. 678. 781. tague v. Preston, 2 Vent. 170.

Mon-
And

see Cragg v. Duke of Norfolk, 2 Lev. 108. And as to recitals in a justice's order, see Rex v. Gilkes, 8 B. & C. 439.

CHAPTER XXIII.

OF THE ADMISSIBILITY OF PAROL EVIDENCE ON THE EXAMINATION OF ABSTRACTS OF TITLE.

THE principal rules as to the admissibility of parol evidence to vary or explain written instruments, have been fully discussed in two two recent and popular works. (a)

They are shortly as follow. That parol evidence is admissible to supply an independent fact, which tends to support a deed. (b) That it will be admissible on behalf of a defendant, entirely to discharge a parol, or even a written agreement; but it is doubtful whether such evidence will not be admissible on behalf of a plaintiff. (c) That a latent ambiguity, or that which does not arise on the face of the agreement, may be ex

(a) Sug. V. & P. 124-161, 8th edition; 1 Phill. Ev. 531-578, 7th edition.

(b) Sug. V. & P. 124; 1 Phill. Ev.

549-55. 553.

(c) Sug. V. & P. 137-143; 1 Phill. Ev. 563-566.

plained by parol evidence. (a) That if an instrument be drawn up contrary to the intentions of the parties, and this arises from fraud or mistake, and the circumstances be clearly proved, a court of equity will grant relief, and will admit parol evidence for that purpose, even on behalf of a plaintiff, but it will still receive it with great hesitation; (b) however where the parol evidence is corroborated by other evidence, the difficulty will be considerably lessened. (c) That if a settlement be made contrary to the intention of the parties, merely to prevent a forfeiture, parol evidence is admissible to prove the real intent of the parties. (d) That it is admissible to prove a resulting trust, or to rebut a resulting trust, or any equitable presumption. (e) That it will be admissible to explain the language of ancient charters and grants. (f) That it is admissible in certain cases to control the indefinite terms of a power. (g) That where a devise refers to some extrinsic fact by way of description, parol evidence will be admissible to ascertain what is included in the description. (h) That the delivery of a deed may be proved by parol evidence at a different time from what it appears to have been done. (i) That proof of a customary right not expressed in the deed may sometimes be proved by parol evidence. (k) That proof of collateral facts will be admitted to show the intention of the parties. (

That it is inadmissible, as well before as since the Statute of Frauds, to annul and substantially vary a written instrument, or to correct printed conditions. of sale. (a) That what would be inadmissible in a court of law is also inadmissible in a court of equity, (b) except where a defendant resists a specific performance of an agreement, when it is competent for him to show that by fraud, surprise, or mistake, the written contract does not contain the real terms. (c) That it is inadmissible to prove even collateral matters, which are of the essence of the agreement, as the payment of taxes, &c. (d) That a patent ambiguity, or that which appears on the face of the instrument, cannot be explained by parol evidence. (e) That it is inadmissible to restrain the legal operation of general words in an instrument, except in a court of equity, where a clear case of mistake is established. (ƒ) That it is inadmissible to prove that a provision was meant to be inserted in a deed, but was not inserted from a mistaken notion of its being illegal. (g) That it is inadmissible, even if fraud or mistake be proved, against a bonâ fide purchaser without notice. () That it is inadmissible to prove the contents of an unstamped instrument which requires a stamp, although such an instrument was wilfully destroyed by the parties. () That it is inadmissible to vary the time of holding in a lease. (k)

(a) Sug. V. & P. 125-147; 1 Phill. Ev. 548. 559.

(b) Sug. V. & P. 127, 128; 1 Phill. Ev. 567.

(c) Sug. V. & P. 128-134; 1 Phill. Ev. 568-570.

(d) Sug. V. & P. 134-137.

(e) Sug. V. & P. 144-146; 1

Phill. Ev. 538-540.

(f) Sug. V. & P. 146.

(g) Sug. V. & P. 157-159; 1 Phill. Ev. 547.

(h) Sug. V. & P. 161.

(i) 1 Phill. Ev. 504.

(k) 1 Phill. Ev. 554; 2 Phill. Ev.

272.