Kostenbader v. Peters

Mr. Justice Paxson

delivered the opinion of the court,

The English rule that parol evidence is inadmissible to vary the terms of a written instrument does not exist in this state. A number of authorities settle the doctrine that in cases of fraud or mistake as to material facts, parol evidence of what occurred at the execution of the writing is competent to explain the real meaning of the parties. As was said by Justice Woodward in Chalfant v. Williams, 11 Casey 212: “We permit a deed absolute on its face to be proved a mortgage; we receive parol evidence to rebut a presumption or an equity; to supply deficiencies in the written agreement; to explain ambiguities in the subject-matter of writings ; to prevent fraud, and to correct mistakes.” To the same point are Dinkle v. Marshall, 3 Binn. 587; Woods v. Wallace, 10 Harris 171; Bank v. Fordyce, 9 Barr 279; Rearich v. Swinehart, 1 Jones 233; Barnhart v. Riddle, 5 Casey 92; Musselman v. Stoner, 7 Casey 270. Was there such a mistake in the deed from the plaintiff to Abraham Dersham as would justify the admission of parol evidence to reform it ? This is the important question raised by this record. The plaintiff offered to prove that she refused to sign the deed prepared by James Marshall; that, after some negotiation, she agreed to give her vendee ten feet more land than was embraced in the survey and deed prepared by Esquire Candor; that the ten feet additional land was then measured off, and the line marked upon the ground; that upon the erasure.of the words “more or less,” she signed the deed, and that the defendant was present during the negotiation, and accompanied the parties to mark off the ten feet. It is urged that this offer was properly rejected, for the reason that the calls in the deed as executed, were for John Bitting’s corner on the southwest, and the middle of the road near Peter Peters’s corner on the southeast, which were recognised landmarks, and easily found. But the evidence offered was evidently for the purpose of showing that the plaintiff refused to sign the deed for the reason that, by its calls, the lines were extended in this direction beyond the lines of the Candor survey, and that, as a concession, she agreed to measure off the ten feet additional. Assuming the facts to be as stated, it is highly probable that when the words “more or less ” were erased, the fact was overlooked that the deed called for the Bitting corner. We think it was clearly competent to show the tract of land as designated by the monuments on the ground, and that there was a mistake or misapprehension on the part of the plaintiff in signing the deed with the call for the Bitting corner. Nor would the fact that the deed was read over to her affect her right to have it reformed, if, in point of fact, a mistake had been made. Such fact might have weight with the jury. All we decide now is, that the evidence should have been submitted to them for their consideration. This disposes of the first assignment.

From what has been said, it will be apparent that the evidence referred to in the second, third and fourth assignments ought to have been received.

The plaintiff is entitled to have this judgment reversed. Whether it will avail her in view of her own distinct evidence that the defendant was in possession of the locus in quo at the time of the commission of the alleged trespass, is more thau questionable.

Judgment reversed.