Opinion
(December Term, 1838.)
1. Evidence will not be received to show a parol agreement contradictory to or varying from a written agreement made at the same time, when no reason is assigned why the former was not incorporated into the latter.
2. Where a deed of gift of slaves was made, and the donee at the same time executed to the donor a sealed agreement, in which he stipulated that in a certain event he would divide the slaves mentioned in the deed of gift equally between himself and a grandson of the donor it was held that upon the event's happening, the grandson was tenant in common with the donee of the slaves, and was entitled to a partition of them, and to have an account of their hires and profits, and a decree for one-half of the same.
THE plaintiff brought his suit against the defendant for a partition of the slaves mentioned in a sealed agreement referred to and made part of the bill, and also for an account of the hire and profits of the said slaves, and to be decreed a moiety of the same. The slaves originally belonged to Willie Bunn, the plaintiff's maternal grandfather. Bunn had been sued at law for the said slaves by the administrator of William Parker, the father of the plaintiff, and pending that suit Bunn made a deed of gift of the said slaves to the defendant Vick, who, contemporaneously, viz., on 9 December, 1829, executed to Bunn the agreement set out in the plaintiff's bill. By the said covenant the defendant stipulated and agreed that he would attend to the suit at law for Bunn, and if Parker's administrator should fail to recover the slaves, he then further agreed that the slaves named in the covenant should be equally divided between himself and the plaintiff, who was a son of his wife by a former husband. Parker's administrator failed in the suit at law, and the defendant took possession of all the slaves mentioned in the agreement, and had received their profits ever since the date of the same.
B. F. Moore for plaintiff.
Devereux for defendant.
The defendant resisted the plaintiff's claim because, as he alleges, Bunn at the time the agreement was executed stipulated by parol that the defendant should board, clothe, and educate the plaintiff, and at his arrival at the age of twenty-one years should then give him one-half of the slaves, and that the plaintiff was to have none of their profits during his infancy, his board, clothing, and education being in lieu (196) thereof. The defendant said that this stipulation was intended to be reduced to writing, but never was. He further insisted that the instrument transferring the slaves from Bunn was testamentary; that Bunn had since died, after making a will revoking the said instrument, and had by his said will given all the slaves mentioned in the bill to his (the defendant's) wife. A replication was filed to the answer, and proofs taken, when the cause was set for hearing and transferred to the Supreme Court.
The execution of the agreement by the defendant as set forth in the bill is proved to the satisfaction of the Court by the testimony of the subscribing witness to it, and by the admission of the defendant in his answer. Evidence of the parol agreement made between Bunn and the defendant, as stated in the answer, cannot be received because, it being alleged to have been made at the time, and there being no reason assigned why it was not incorporated therein, its exception would tend to contradict, add to, or vary the written agreement, which the law will not permit to be done by parol evidence. Secondly, the deed of gift of the slaves which Bunn made to the defendant is not produced in evidence. It is admitted and recited as a "deed of gift" in the agreement executed by the defendant to Bunn. There is not a particle of evidence in the cause to show that to be a testamentary paper. The Court is therefore of the opinion that the plaintiff is in equity a tenant in common with the plaintiff of all the slaves and their increase which are comprehended in the agreement attached to the bill and executed by the defendant to Bunn on 9 December, 1829. The Court is also of the opinion that the plaintiff is entitled to a decree for partition of the said slaves, and to have his moiety assigned to his guardian for his use in severalty; and also that he is entitled to an account of the hires and profits of the said slaves, and a decree for one-half of (197) the same. In taking this account the commissioner will allow the defendant all just charges either against the property or the plaintiff.
PER CURIAM. Decree accordingly.