Hayden v. Mentzer

IN ERROR. In a deed of bargain aiid sale which states a money consideration, evidence is admissible to show that besides the consideration of money, there was a consideration of advancement to the daughter of the bargainor. Query, Whether parol evidence is admissible, to show a consideration contrary to that expressed in a deed o'f bargain and sale..

This was a writ of error to the Court of Common Pleas of Franklin, county, in an amicable action entered in the name of Richard Hayden and Rachael his wife against C. Mentzer and others in pursuance of the recommendation of the Orphans’ Court, for the purpose of ascertaining the amount of advancement made by David Mentzer, deceased, in his life time, to Rachael Hayden, late Rachael Topper, one of his daughters, and a plaintiff in this action. It appeared on the trial, that articles of agreement were executed on the 10th May, 1807, between David Mentzer and Andrew Topper, (former husband of Rachael Hayden,) by which the former, for the consideration after mentioned, agreed with the said, A. Topper, his heirs, &c. on or before the 1st November, then next, to give a sufficient title for a certain tract of land containing 110 acres and 115 perches together with 4 acres of meadow, and 20 acres of mountain land, adjoining, &c. and a note of hand, and some pine timber, in consideration whereof the said A. Topper, agreed to pay ¿6200 in two payments, the first, in one year after D. Mentzer’s death, the other in two years after that time, and by the agreement D. Mentzer reserved certain crops of grain in the ground. On the 7th November, 1807, D. Mentzer and wife conveyed the lands to A. Topper, in fee, in consideration of the same sums. The defendants gave parol evidence to show, that the tract of 110 acres and 115 perches cost Mentzer ¿6800, and was worth that sum, and that the intent of the parties was, that ¿6800, should be considered as advanced by him to Topper, on account of his wife, and that the ¿6200, mentioned in the.articles as the consideration money, was to be paid for the 4 acres of meadow and the mountain land. The plaintiffs requested the court to charge the jury as follows: 1st. That the articles of agreement are conclusive evidence of a bargain and sale of the land to Andrew Topper, and cannot be altered by any of the parol evidence which has been given. 2d. The land having been sold to A. Topper himself, in fee simple and for a valuable consideration, cannot be an advancement to the wife of a A. Topper. 3d. That none of the declarations of A. Topper, can alter the nature of the transaction or convert it into an advancement. 4th, There is no evidence of any advancement to the wife óf the defendant. 5th. There being evidence of fraud or mistake in procuring the articles of agreement or deed, the plaintiffs cannot, in this manner be permitted to set up any other consideration than that expressed in said instruments, and the jury is not to regard parol evidence given to establish another consideration. The court charged as follows: 1st point. We are of opinion the articles of agreement are not conclusive evidence of bargain and sale of the land to A. Topper, so as to prevent an inquiry on the present issue whether an advancement was intended by the parties. 2d point. If the land was sold to A. Topper himself in fee simple, for a valuable consideration, it could not be considered as an advancement to the wife of A. Topper. But if you are satisfied from the evidence before you, that the agreement of the parties was, that ¡£800, or any greater or less sum, was intended by Mentzer as an advancement to his daughter, and so considered and received by Topper her husband, and that the ¿S200 mentioned in the deed was only part of the consideration for the land so conveyed, then such sum, so agreed upon, would constitute a good advancement, and you should find accordingly. 3d point.' The declarations of A. Topper, cannot alter the nature of the transaction, and convert it into an advancement. But they are evidence of what the transaction was, and tended to show, whether an advancement or sale was intended. 4th. We think there is some evidence of such advancement, but refer its extent and credibility to the jury to decide. 5th. To this proposition we do not assent, under the facts in evidence if believed by the jury.- 'Whether they establish fraud or mistake in the agreement or deed, the plaintiffs are permitted to set up a further consideration than that expressed, being consistent with it. And the parol evidence given to establish such further or additional consideration is properly before you for your consideration. It was assigned for error, that the court erred in their charge to the jury on all these points.