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HERTLE VS. McDONALD. 131 the payment of the purchase money, the defendant knows noth- ing except that derived from the deed to West. The defend- ant says, he has no personal knowledge of the various matters alleged in the bill, showing the interest of the complainant in the property, nor has he been able, after a diligent search among the books and papers of his testator, to find any such informa- tion, and therefore puts the complainants to the proof of their bill in this respect. The answer then pleads and relies upon the statute of frauds and perjuries, and upon lapse of time, and the act of limitations as constituting a full and complete defence to the claim set up in the bill. It may be observed, that no evidence has been offered which proves, or even attempts to prove, the agreement charged in the bill, to wit: that Schwartze and McDonald should keep possession of the property, in case of default by Gibbons, until they were reimbursed from the rents and profits for the money, which, as his sureties, they might be compelled to pay. Nor does the bill allege that the deed from Corry, to Schwartze and McDonald, was not intended to be absolute, or that it was made so by fraud, accident or mistake, and, therefore, did not fulfil, but defeated the design of the parties; and, consequent- ly, parol proof upon these points is inadmissible; for it is too clearly established to be disputed, that you cannot offer such proof to change or contradict the terms of a deed or contract, in writing, upon the ground of fraud, surprise or mistake, un- less appropriate allegations are contained in the bill. Wesley vs. Thomas, 6 Har. & Johns., 25. In that case the Court of Ap- peals say, "that although relief can be had in equity against a deed or contract, in writing, founded in fraud or mistake—still, it is essential, that the fraud or mistake should be alleged in the bill, as the ground and object of parol proof." And the same principle, has been uniformly affirmed by the court wher- ever the question came before it, As, therefore, the bill, in this case, does not allege that the deed from Corry to the defendants is different, or conveys a different title from that which was intended and agreed upon; |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
| Volume 200, Volume 2, Page 131 View pdf image (33K) |
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