Gardiner Manufacturing Co. v. Heald , 5 Me. 381 ( 1828 )

Weston J.

delivered the opinion of the Court.

It has not been contended in argument, nor is it true in fact, that any legal partition of the land, from which the timber in question was cut, has been made; so as to convert the estate in common, which Solomom Bangs held, into an estate in severalty. The parties in interest could make such partition between themselves, only by deed. The instrument, which purports to be a partition, closes with the' words “ in witness whereof, we the said Bangs &c. have hereunto set our hands and seals” ; but no seals were in fact affixed. And if there had been, Bavid Smiley, who put the signature of Bangs thereto, as his attorney, was not authorized by deed so to do. When therefore the plaintiffs attached the interest of Bangs in the land, he held as tenant in common ; and his estate duly passed, by the subsequent proceedings, to the plaintiffs.

The defendant insists that what he did was rightfully done, in pursuance of an agreement with Bangs, made prior to the attachment.' The agreement was committed to writing, and was signed by the parties assenting. 'There had been a previous negotiation and treaty in relation to the subject; but the written instrument is the evidence of what was concluded. The parol testimony objected to went to change that which the parties had set forth in writing. By the latter, tile land was to be divided, and the timber, as a consequence of fhat division. By the former, the timber alone was to be divided, ind the land to be left undivided.

in the Countess of Rutland’s case, 5. Co. 26, it was resolved that “£ it would be inconvenient that matters in writing made by advice, and on consideration, and which finally import the certain truth of the 'agreement of the parties, should be controled by an averment of parties, to be proved by the uncertain testimony of slippery memory $ and it would be dangerous to purchasers, and all others, in such cases. If such nude averment against matters in writing should be admitted.” And there is no rule of evidence better established, than that parol testimony cannot be received to vary, alter or contradict that which is written. But it is contended, on the part of the counsel for the defendant, that as the written instrument cannot by law operate a partition of the land, as its terms import, it may be rejected as a nullity ; and then the parol testimony might be admissible. The rule of law which gives a preference to written evidence, and excludes parol when it comes in competition, is designed to elicit and establish truth. Where the law does not require written evidence, a parol agreement may be enforced. But when agreements are committed ¿o writing, that alone is evidence of what the parties have agreed. And if, through defect of form, or by reason of some positive provision of law, it cannot have the eiFect intended, it still remains the best evidence of the understanding of the parties. To suffer it to be controverted and changed by “ slippery memory,” would be an attempt to illustrate that which is more certain, by that which is less so ; which is no less contrary to just principles of reasoning, than to law.

If there had been no written evidence in the case, and the parol agreement had been such as it appeared in testimony, it might have amounted to a license to the defendant, or to a sale of the standing trees, for which it seems Bangs had an equivalent, which might perhaps have bound him, or those deriving title from him with notice. But it would be certainly opposed to the policy of the law in relation to real estate, to give effect to such a sale against a purchaser, or an attaching creditor, without notice. In the case before us, the land was valuable principally for its timber; and there is much land of this description in this State. The timber is attached to the realty.' It is part of the inheritance. To cut or destroy it, except in a few specified instances, is waste on the part of the tenants for life or years, for which they are answerable to him who has the next estate of inheritance in remainder or reversion. What safety would there be in buying property of this description, if a party without notice might lose the principal value, and perhaps the sole object, of his purchase,.. if any one might strip the land with impunity, who could prove by parol that the vendor had previously sold the timber,to him? It is not pretended that the plaintiffs had notice of any such agreement, prior to thejr attachment; and they are under no obligation to fulfil any parol contract óf their debtor, whatever might be said of a writ- ■ ten one, in relation to the timber.

By the notice given by the defendant to the plaintiffs, he is protected ffom being held answerable to them as a trespasser, for penal damages under the statute to prevent tenants in common and others from' committing waste; but if the plaintiffs have been injured, they are not without'remedy. If they had an interest in the trees, as a part of the realty when attached to the land, when severed therefrom their interest did not cease. If one man enter upon the land of another, and there cut down his trees and sell them, the party injured may waive the trespass, ratify the sale, and maintain assumpsit against the wrong doer for the money. And we are satisfied from the authorities cited, that one tenant in common of personal property,, as the timber in question was, after it was severed, may maintain as-sumpsit for his proportion against another, who has sold the common property, and received all the money.

In regard to the levy, we are of opinion that it must be deemed effectual in this action. A remedy for the irregularity stated, cannot be applied in this collateral mariner. It must be obtained by audita querela; or by motion to the court, by. whom the judgment was rendered, to set aside the execution.

Verdict set aside and the defendant defaulted.•