McElderry v. Shipley

Tuck, J, delivered the opinion of the court. The object of the present bill is to obtain a decree for the sale of the property therein mentioned, for the purpose of paying a debt, alleged to be due to the appellant, by the defendant Shipley. It is said that this can be effected in one of three modes, either by considering the property as charged with a trust for the benefit of the complainant to the extent of his claim; or, by reforming the mortgage from Shipley to Lister, and his assignment thereof to the appellant, so as to give to them an effect contrary to their apparent intent; or, by foreclosing these instruments, foi the use of the complainant as assignee. Whatever may be the doctrine elsewhere, as shown by the cases referred to in the argument, we consider the law to be well settled in Maryland, that parol evidence is inadmissible, in a case like the present, to contradict, add to, or vary the terms of a written instrument; and although a court of chancery will, upon proof of fraud, mistake or surprise, raise an equity by which the agreement will be rectified according to the intent of the parties, it will not interfere where^the instrument is such as the parties themselves designed it to be.

For if they voluntarily choose to express themselves in the language of the deed they must be bound by it. Wesley vs. Thomas, 6 H. & J., 24. Watkins vs. Stockett, 6 H. & J., 435 . Bend vs. Susq.

Bridge Co., 6 H. & J., 128 . Harwood vs. Jones, 10 G. & John. 40 4 . The mortgage from Shipley to Lister, professes to secure a debt from the former to the latter, of $1200, and sometime afterwards Lister assigned this mortgage to the complainant, to secure a debt of $936.34, for which, as the assignment states, he had passed his note to the complainant. The amount here mentioned is the precise sum alleged to be due by Shipley to McEldery.

These exhibits appear in the record. The bill, as amended, states: “And your orator further avers and charges, that notwithstanding the said assignment of the said leasehold property was made by the said Shipley to said Lister, with the express agreement and understanding ³⁶ between said Lister and Shipley and your orator, at and- "before the execution of the said agreement, that the same was made and given to secure your orator’s claims against said Shipley, as hereinbefore recited, yet the said Lister now fraudulently denies that the same was given upon said agreement and understanding; and with a view to defraud your orator, is attempting to deprive him of the benefit which it was the object of the said assignment to secure to your orator, he, the said Lister, alleging and claiming that said assignment was made and given for his sole use and benefit. Your orator also alleges and charges, that to give to said Lister or to any other person than your orator, the benefit of said assignment, would be a gross fraud upon your orator, and upon the agreement under which said assignment was executed by said Shipley.” The appellant offers to show, by parol proof, not. that these instruments are not, in terms, what the parties to