This is an action of trover for a portion of the stock of a livery stable and riding school, brought by the assignee of an insolvent firm. A large proportion of the stock, consisting of horses and carriages, was under mortgage; but the portion now in controversy, a few hundred dollars’ worth, was not mortgaged. The case finds that the plaintiff gave the defendant an instrument, purporting to be a bill of sale of the property in the stable and riding school, enumerating and specifying the several articles, embracing those sued for in this action, under which bill of sale the defendant claims title to the same. In the afternoon of the same day, the parties went to the stable to make delivery; and the plaintiff, in making delivery, said that he delivered the mortgaged property, and no other, and no further explanation was made. The-whole property is described and specified in an inventory, as conveyed, and is described as subject to three mortgages specified, with the amounts due thereon, including interest.
The plaintiff offered to prove by the counsellor at law, by whom the inventory was converted into a bill of sale, that when it was prepared, the plaintiff stated to the defendant, that he conveyed thereby to him only the mortgaged property ; and that the last clause was intended by both parties, and was written by the witness, for the purpose of limiting and confining the bill of sale to the said mortgaged property. This evidence was rejected as incornpétent and inadmissible. The court are of opinion that this evidence was rightly rejected, on the ground that it was an attempt to vary and control a written instrument by parol evidence. The case is quite distinguishable from that of Blood v. Harrington, 8 Pick. 552. Here, the instrument was offered and relied upon, as the contract of sale and proof of title; it was essential to the case, specified the terms of sale and the mortgages to which the property was subject. The offer of the evidence was an attempt to show, that a part of the articles, clearly *272contained in the description of the property conveyed, were not intended to be conveyed — against the settled rule.
2. It is attempted to put it on the ground of latent ambiguity. We perceive no latent ambiguity. The sale was of the articles contained in the inventory of the property of the late firm of Nims & Company. In applying this description to the property, none other appeared, or was claimed, besides that comprehended in the description. It is very probable that there was a mistake, either in not knowing the condition of the property, or in reducing the contract to writing; but such mistake, if made, cannot be corrected by parol evidence.
3. It is then urged that the first description is controlled by the last clause, “ being subject to mortgagebut it cannot be so construed. These words are part of the description of the whole property. If the words had been, being the same contained in a specified mortgage, or any words of restriction to those mortgaged, it might have let in parol evidence tó ascertain what would fall within the description. But it describes them all to be subject to certain mortgages, definitely described; and the obvious purpose seems to be, to give distinct'notice of the amount of encumbrances upon the property conveyed.
4. The plaintiff then relies on the limited and qualified delivery, to restrict the operation of the contract of sale. This is another attempt to controvert a written contract, by matter resting solely in parol proof. But if it were good in law, it would not apply. No specific delivery of the property was necessary to give effect to the sale. The delivery of a bill of sale of property in the hands of a third person, with notice to such person, passes the property. But the delivery was coincident with the conveyance; the conveyance was of the whole property in the inventory, the whole being subject to certain mortgages; the delivery of the mortgaged property was equivalent to a delivery of the conveyed property, the whole being described as under mortgage. No distinction, was then made; no statement that all the property in the stable and riding school was not mortgaged oroperty.
5. The last exception is, that questions o* 'aw were left to *273the jury. This seems to be a mere criticism on the words of the report, not well founded. The meaning is obvious. The terms are, “ the court instructed the jury, that if they should find that the parties had deliberately reduced then- contract to writing, and had therein specified the property in question in such terms as imported a legal conveyance of the same, and there was no uncertainty as to the subject matters intended to be conveyed,” &c., then parol evidence of conversations between the parties should not be regarded, &c. Perhaps, in strict grammatical terms, the whole, both law and fact, is put hypothetically; the meaning is, if the jury find that the paper was executed, which is a question of fact for their determination, then it imported a legal conveyance of the property, which parol evidence was inadmissible to contradict or vary — declaring the law. We think there is no ground for this exception. Exceptions overruled.