Opinion
July Term, 1810.
Bill to redeem. Complainant charged that he borrowed $800 of defendant, and to secure the repayment thereof had executed to defendant an absolute deed for certain lands; that it was agreed between him and the defendant that he might redeem the lands, and that defendant, upon receiving his money, with interest, should reconvey them; but it was agreed that this part of their contract should not be put in writing, and that, as to it, complainant should trust to the defendant's word." Defendant, in his answer, denied the parol agreement charged in the bill, and set up an absolute purchase of the lands: Held, that parol evidence cannot be received to prove the agreement charged in the bill, for such evidence would contradict the deed of complainant.
COMPLAINANT charged in the bill that in 1799 the defendant, Nathaniel Jones, advanced to him on loan the sum of $800, and that for securing the repayment thereof, with 25 per cent interest, on or before the expiration of that year, he executed to the defendant an absolute deed for divers tracts of land. That it was agreed at the time the deed was executed that the lands should be redeemable on complainant's paying the money borrowed, and 25 per cent interest thereon; that complainant expressed a wish that a paper-writing, setting forth that the lands were redeemable, should be annexed to the deed; but defendant objected, and said, "Here, take the money you want, and trust to my word"; and that, trusting to the word of the defendant, he executed the deed. The complainant then charged that he had continued in possession of the lands until 1801, when he was evicted. The bill prayed that complainant might be permitted to have an account taken under the direction of the court, of the principal money advanced to him by defendant, and the interest which had accrued thereon; that the (450) court would decree that upon the sum thus ascertained being paid to the defendant, he should reconvey to the complainant the said lands. The complainant offered to release the penalty given by the statute against usury, etc.
From Wake.
IN EQUITY.
To this bill the defendant filed his answer, and set up an absolute purchase of the lands. He denied that any agreement was made that the lands should be redeemable, and admitting the fact that complainant retained possession until 1801, alleged that complainant continued in possession as his tenant, and had agreed to pay a certain rent annually for the said lands, so long as he remained in possession thereof.
The case was sent to this Court upon the question, Whether complainant could be permitted to prove the parol agreement charged in the bill to have been entered into between him and defendant at the time the deed was executed, to wit, that he might redeem the land upon paying the money advanced to him, and the interest.
The bill does not charge any circumstances of fraud, mistake or accident, nor does it charge that complainant was a needy man, and that defendant, knowing his necessitous circumstances, took advantage thereof, and thereby procured an absolute deed, when only a mortgage was intended. The bill states a case of two men, equally free and competent to contract, having made an agreement as to the conveyance of a tract of land, part of which agreement they reduced to writing and part thereof by mutual consent still rested in parol; and this latter part is in direct contradiction to the former. That part of the agreement which is in writing sets forth an absolute and unconditional sale of the lands; that part which by mutual consent was not reduced to writing sets forth that the sale was not absolute, but conditional, and that complainant was entitled to have the lands reconveyed to him upon his performing the condition. In other words, the (451) complainant asks to be permitted to contradict by parol evidence his written contract with the defendant, and assigns no other reason for this request than that he and the defendant had voluntarily agreed that the writing should not set forth their contract truly. It would be too palpable a violation of the rules of evidence to permit the complainant to set up a parol agreement contradictory of the written one. He agreed "to trust to the defendant's word"; upon that he must still place his trust. This Court can give him no relief. The rules of evidence applicable to this case are discussed at large in Smith v. Williams, ante, 426.
Cited: Dickenson v. Dickenson, 6 N.C. 290; Sowell v. Barrett, 45 N.C. 54; Bonham v. Craig, 80 N.C. 227, 8, 9; Egerton v. Jones, 102 N.C. 283; Norris v. McLain, 104 N.C. 160; Sprague v. Bond, 115 N.C. 533.
Doubted: Streator v. Jones, 10 N.C. 433.
(452)