Davis v. Lassiter , 20 Ala. 561 ( 1852 )

DARGAN, C. J.

Although tbe general rule of law is, that tbe mortgagee in possession must account to tbe mortgagor for tbe rents or profits of tbe mortgaged property, yet we apprehend that there may be cases where tbe parties, by contract, may vary or change this rule, and thus relieve tbe mortgagee from accounting for tbe profits which be has, or might have received. This, I think, would have been tbe rule in tbe present case, if tbe contract of mortgage bad shown that tbe mortgagee was to receive tbe profits of tbe slave to bis own use, in consideration of bis becoming liable, as security for tbe plaintiff, to pay tbe purchase money agreed to be given for tbe slave. But tbe question before us is this, can parol proof be received to show that such were tbe terms of tbe contract ? When parties have reduced tbeir contract to writing, in terms clear and unambiguous, oral testimony cannot be received to contradict or vary tbe legal import of tbe contract. By reducing tbe contract to writing, tbe written instrument becomes tbe only evidence of tbe intention of tbe parties, and no other words or terms can be added to it by parol proof. This principle of law, time after time, has been announced by this court. Indeed, it is admitted by all; but tbe difficulty is, in making tbe application of tbe rule to every particular case; still, however, we must test each case by it, and if tbe parol proof is rejected by this rule, it cannot be admitted.

Now, tbe mortgage is silent as to that part of tbe contract, to establish which tbe defendant introduced parol evidence. It provides that tbe defendant shall have tbe possession of tbe slave until tbe debt was paid, and also authorizes him to sell tbe slave and pay tbe debt, if tbe plaintiff failed to pay; but it says nothing about tbe defendant’s right to appropriate to himself the services of tbe slave until tbe debt was paid, in consideration of bis becoming liable as security for tbe payment of tbe purchase money. As tbe instrument is silent on this subject, tbe legal construction of it is, that tbe defendant being a mortgagee only, be must account to tbe mortgagor for the hire of tbe slave; and to permit this legal construction to be altered, by proving another fact not written in tbe mortgage, would be to add to tbe written instrument by oral testimony, and thus to change its legal effect.

Tbe decisions of this court clearly show that this cannot be done. Duff v. Ivey, 3 Stew. 140; Barrenger & Rhodes v. Sneed, ib. 201; Mead v. Steger, 5 Por. 498; Hall v. Moore, 5 Ala. 521; Long v. Davis, 18 Ala. 801.

Tbe court erred in admitting the parol proof, and tbe judgment is reversed and tbe cause remanded.