Opinion
July Term, 1809.
The words in a deed of trust, "to pay, satisfy and detain to themselves the sum of £ 500, together with all costs which shall arise against them for their being security for A, for several different sums of money, also being common and special bail in several suits," do not extend to securityships entered into subsequent to the execution of the deed; and parol evidence is not admissible to prove that the parties intended the deed to extend to subsequent securityships.
THIS was an action of detinue for certain negro slaves in the possession of defendant, to which the plaintiffs claimed title under a deed of trust, executed to them by William Roberts, on 27 May, 1769, to indemnify them as to sundry debts for which they were bound as his securities. The principal question in the case arose upon the construction of this deed: whether it extended to future securityships or was confined to securityships existing at the time of its execution. For on 10 September, 1772, William Roberts, with the plaintiffs as his securities, executed a bond to William Cunningham Co. in the penal sum of £ 300, Virginia currency, conditioned for the payment of £ 150, like money, on or before 1 March, 1773. William Cunningham being a British merchant, and the late Revolutionary War coming on shortly after the bond became payable, the debt remained unpaid until 1803, when suit was instituted on the bond against Miller, one of the plaintiffs, in the Circuit Court of the United States for the District of North Carolina, and judgment obtained at December Term, 1803. Miller discharged the judgment, and sought to indemnify himself out of the property conveyed to him and Samuel Roberts, by the deed of trust aforesaid; Lucas, the defendant, being in possession of two negroes, the increase of one of them (229) named in the deed. This suit was brought to recover possession of them.
From Randolph.
The deed set forth, "that William Roberts had bargained, sold, etc., to Haman Miller and Samuel Roberts, their heirs and assigns forever, two slaves, to wit, Peter, etc., together with all the stock of horses, cattle, hogs, household goods, and all other estate whatsoever to the said William Roberts belonging, to have and to hold the said slaves, etc., upon special trust and confidence, and to the uses, intents and purposes following, that is to say, that the said Haman Miller and Samuel Roberts shall, at any time and at all times hereafter, possess and seize themselves of the aforesaid slaves, and other estate before mentioned, and sell and dispose of them for ready money for the best price or prices that can or may be got for the same of any or every part thereof, and out of the money arising from such sale, pay, satisfy and detain to themselves the sum of £ 500, current money of Virginia, together with all costs that shall hereafter arise against the said Haman Miller and Samuel Roberts on account of their being security for the aforesaid William Roberts for several different sums of money, as also being common bail and special bail in several suits in the County Court and General Court against said William Roberts, until receipts of the money paid; and also to reimburse themselves all reasonable expenses in recording the present deed or making the sale as aforesaid." It was contended on behalf of the defendant, that the debt to Cunningham Co., being contracted several years subsequent to the execution of this deed, was not embraced by it, and the payment of this debt by Miller gave him no right to sue for and recover the property conveyed to him and Samuel Roberts by the deed.
The plaintiffs offered in evidence the deposition of Francis Arnold, to prove that it was the intention of the parties, at the time the deed was executed, that it should extend to securityships thereafter to be entered into, and that they (230) had so construed it after its execution.
The case was sent to this Court upon the questions, (1) whether the deed is to be construed to extend to securityships entered into by the plaintiffs in 1772, after the making of said deed; (2) if not, can it be so extended by the deposition of Francis Arnold?
The construction of a deed must be made from the face of it, and no averment or parol evidence can be received to contradict it. When it is proved in a court of justice, it is conclusive on the rights of the parties. Although parol evidence may be admitted to explain latent ambiguities in a deed, and in some special cases has been received to explain ambiguities which were patent, yet such evidence is admissible only in cases of evident necessity. The court will never receive parol evidence to explain away or contradict an explicit agreement in writing. The deed in question does not require the aid of parol evidence to understand it. The words are, "on account of their being security for, etc." The plaintiffs contend that these words may well be construed to extend to cases where they became securities for William Roberts, subsequent to the date of the deed, and that this construction is supported by the words "detain to themselves the sum of £ 500, Virginia money, together with all costs that shall hereafter arise." The several sums for which the plaintiffs became security were known: as well the bonds on which William Roberts had not been sued, as those on which he had been sued, and in which suits they had become his common and special bail. The whole of those sums being known, a sum certain could be easily fixed on which would be sufficient for their indemnification, and the sum of £ 500 was agreed on as sufficient for that purpose, but not with respect to the costs that might afterwards accrue. Hence, as to the costs, the words are in the future time, and no specific sum (231) is mentioned or agreed on. The participle "being" is used in expressing that they had become common and special bail in suits in the County and General Courts; and it is not pretended that they are or would be entitled to indemnification for becoming common or special bail for William Roberts subsequent to the execution of the deed. When the deed speaks of the expenses of "recording, etc., and of selling the property," the expressions used prove clearly that the parties were not deficient in language to convey their ideas; that they were capable of using apt and proper words to embrace all the objects which they had in view. The Court is therefore of opinion that the deed cannot be construed to extend to securityships entered into subsequent to its execution, and that the deposition of Francis Arnold cannot be received to aid its construction.