Adams v. . Battle

Eaieoloth, 0. J.

On January 22, 1890, the plaintiff, by deed, conveyed a large amount of real and personal property to W. II. Pace in trust to pay plaintiff’s debts in the manner described, with power to collect, sell the property at private or public sale, and to do the usual duties of a trustee in such cases. Pace died in April, 1893, and this action was brought October 16, 1896, and it is agreed that the trust was closed in the lifetime of the trustee, except as to the matter controverted in this action. The deed provided that the trustee might retain 4 per cent commissions on receipts and disbursements, that is, 8 per cent on the total amount, which was $2,461.01.

The defendants are the personal representatives of the trustee. The plaintiff was allowed to prove by parol that, some days after the deed was executed, Pace agreed with plaintiff that if there was no litigation in the courts respecting the trust he would charge only 2-J per cent on receipts and .disbursements. He also proved that there was no suit brought, and -there is no evidence of any unusual trouble in executing the trust. The defendant excepted to the admission of this parol evidence and to the charge of the Court in respect thereto. The verdict was for the plaintiff.

The defendants’ contention is that the evidence is incompetent to prove that the parties agreed subsequently that the commissions should be less than specified in the deed, unless done in as solemn a manner as the deed was made, that is, under seal, under the maxim eoligamine, quo ligatur. It seems that no verbal agreement contemporaneous with the execution of an instrument under seal will be heard to contradict or vary its terms. The effect of a subsequent agreement by the same parties has been much discussed by different courts, and in some of the States the matter is put to rest by legislation. But we are informed by counsel that the question has not yet been decided in our State, and we find no such decision.

It was an old iron-clad maxim of the common law that an obligor would only be released by an instrument of as high dignity as that by which he was bound, .that is, being obligated by a seal be could be released only by an instrument under seal. Technically, this is the rule of modern times, unless changed by statute, but practically it is seldom enforced. To this rule, the exceptions were and are so numerous that seldom can the rule be applied. In' an action on the bond or other sealed instrument, the debtor pleads and proves the actual receipt of the money by the oblig'ee; no court could hesitate to hold this to be a release and discharge of the bond. Suppose the debt secured by a mortgage, a release and discharge need not be under seal. Suppose the principal of a note under seal pays the debt and the sureties are sued on the same, would any court require them to show that their principal had been discharged under seal? Suppose again, that a landlord leases land for a term of years under seal, and during the term the premises are greatly damaged without any fault of the lessee, or that they have greatly depreciated in value, or have become partially unfit f-r t’- e purpose intended, and the landlord, conscious of these and similar facts, agrees verbally with the lessee that, for the balance of the term, he will' take less rent than is stipulated in the deed; would not the lessee be protected by such agree-If proof of payment will discharge, why should not o-n -'-•Teément to discharge have the same effect between the -riginal parties ?

r'oms difficult to find a case where the parties, bound to o 'her bv an instrument under seal, will not be dis-vd In nnml proof of facts if they are sufficient in them- • : .; to w'nstitute a discharge. In such matters, the ' :vp performance in pais, and are probably of more > to business men than the dignity of being sheltered by a :■ I rrhe chief reasons for the sacredness of the seal have co!"- -d. since statutes and courts of equity have been liberally reo* -ving the hard-places of the common law. The dignity of tbe seal is due more to the original form of the instrument than to the real interest and intention of the parties.

Whether the trustee intended to retain 8 per cent commissions we are not informed, as he had recently before his death closed out the other trust matters, nor is this very material now. He was a practicing attorney and understood technicalities of the law, and we must assume that when he made the parol agreement he did so in good faith. We are led to the conclusion that the evidence was admissible and that the charge of the Court was not erroneous.

The result seems to be full justice without the infringement of any sound principle of law.

2. Is the action barred by the three years’ statute of limitations ? If it rests solely on the parol agreement, it is barred. If the action is based on the contract in the deed, it is not barred.

It will be observed that by the terms of the parol-agreement the trustee made no promise to pay the plaintiff anything, but only agreed to retain less commissions than those nominated in the deed, on certain conditions. The entire property passed to the trustee with an express trust impressed on it, and nothing appears to show that it was divested of the trust during the trustee’s life. The trustee stated and rendered no account of his administration and no settlement appears to have been made between trustor and trustee. The plaintiff setting out the trust deed, alleges that the trustee is due him the amount sued for, evidently meaning the difference between the rate of commissions. ' Now, if anything due the plaintiff remained in the trustee’s hands at his death, it resulted to the plaintiff, whether so expressed in the deed or not. The plaintiff demands said sum in his complaint, and it was for the jury to ascertain the amount.

We are of opinion that the action is not barred, and that no error was committed on the trial.

Affirmed.