Adams v. Garrett , 12 Ala. 229 ( 1847 )

GOLDTHWAITE, J.

It is not material now to inquire whether the condition attached to the bill of sale makes the transaction a mortgage, because it seems to us the same answer must be given to the question raised on the record, whether it is so considered or regarded as a conditional sale, with the reservation of the right to restitution, upon the return of the purchase money. Conceding the title to the slave would be revested by the tender of the specified sum, according to what is said in Sewall v. Henry, 9 Ala. Rep. 24, it by no means follows that such is the effect when the debt is equitably discharged by the reasonable hire of the slave. We do not understand, however, that this view was pressed at the trial, but then the plaintiff insisted on the right to show that the real contract was, that a specific hire should be allowed for, until the debt was extinguished or the money returned. If this does not fall within the rule prohibiting the modification of written contracts by parol evidence, it seems to us quite difficult to suppose a case for its operation. There is no pretence to say that it is the affixing a condition to an absolute conveyance, because the written instrument already has a condition, and if another can be added by parol, there must be an end of all certainty. In conformity with this view of the law, it has been held, where a mortgage was conditioned for the payment of money, parol evidence is inadmissible, that it was given to indemnify the mortgagee as special bail for the mortgagor, and that no damage had been sustained. [Jackson v. Jackson, 5 Cowen, 173.] So, where the mortgage was conditioned for the payment of $50, parol evidence was not allowed to show it was intended to indemnify the mortgagee for becoming surety for a note of $25. [12 Wend. 61. To a similar effect is Brooks v. Maltbie, 4 S. & P. 96.] These citations (and many others we doubt not might be added) are quite sufficient to show that parol evidence was inadmissible to show a different condition from that recited in the bill of sale. It is unnecessary to consider how far a fraudulent imposition of a condition in the bill of sale, from that intended by the parties, would affect the instrument in a suit at law, as the proof had no tendency to raise that question.

Judgment affirmed.