The bond obligatory of the defendant's testator affords evidence on its face that, at its date, the testator, David Dunlap, was indebted to Jane Nevius, the plaintiffs' testatrix, in the principal sum of three thousand dollars mentioned in it. The parol evidence shows that this indebtedness was for land sold by the father of these parties to David, which land, or the proceeds of the sale of it, was intended to be given to his daughter, Mrs. Nevius, as her portion of the family estate, to make her equal to the four sons, to each of whom he had given one hundred acres, by conveyances vesting a present interest in possession. This three thousand dollars became Mrs. Nevius' money by the tripartite arrangement between the father and this daughter and his son David, effected by the giving of the bond in question by David to Mrs. Nevius, with the assent of the father, to whom the money would have otherwise become due. As David Dunlap thus had, by immediate title, and right of enjoyment, the property for which the bond was given, he was equitably bound to pay interest to her so long as the payment of the principal should be deferred. But, according to the written obligations, all these five children, or at least four of them, William having gone away, were to give their respective bonds for the payment of $210 each, being the interest at seven per cent on the value of their respective shares of the farm during the lifetime of their father and mother or either of them. For a reason not explained, Mrs. Nevius was not to give any bond. It may have been because she was a feme covert, and could not execute a bond, or because she was not of pecuniary responsibility, or because she was not present when the arrangement was consummated. At all events she was not to give a bond, and she did not give any. But still she, or her share of the property, was to come under the same obligation to their father as that assumed by each of the brothers. This was arranged by doubling the amount of the condition of David's bond, and this was done *Page 685 by inserting four hundred and twenty dollars instead of two hundred and ten. Then David was to be indemnified for the liability he had assumed in behalf of Mrs. Nevius. This was accomplished in this manner: David had her money in his hands, and the bond was given, as I have said, to secure its payment to her. He could secure the needed indemnity by an arrangement respecting the interest on this money, viz.: that he should retain, and not pay to her, a sum corresponding with the amount which he might have to pay on account of the obligation to his father which he had assumed on her behalf. This was the substance of the arrangement; but, unfortunately, the papers were drawn by another brother, Josiah Dunlap, who was unaccustomed to the drawing of such instruments, and did not well understand the force of language. He, however, made an express reference, though not a perfectly accurate one, to the bond which he had given to his father. He describes it as an obligation to pay him two hundred and ten dollars. It was for double that sum, but the two hundred and ten dollars was the true sum he had obliged himself to pay on her behalf. This is all intelligible enough. The reference to his bond to his father shows the intent and purpose of the arrangement respecting interest on the bond to Mrs. Nevius, and that its object was indemnity, as has been mentioned. This is made perfectly clear by the words in parenthesis, "it being the amount of annual interest on this obligation." That is, the interest on the $3,000 he owed Mrs. Nevius is withheld, on account of his having become bound to pay that interest, or an amount equal to it, to their father. Then it was expressly inserted, that when his obligation assumed on her behalf should cease to be obligatory, which would happen when the elder Dunlap and his wife should both be dead, the bond to Mrs. Nevius should commence to draw interest, and not before. There is another clause, which is intelligible enough, but not operative for the want of proper parties uniting in the instrument. It is, "that in proportion to the payments made on this obligation, the payments on the other shall be diminished, and be no longer obligatory." What *Page 686 was meant was, that if he should pay the $3,000 or any part of it to Mrs. Nevius, he would no longer pay the interest on the amount of principal so paid, to his father on the obligation he had assumed on her behalf to him. This is inoperative, as I have said, and it is because the father, the obligee in the other bond, was not a party to this. But still it shows very clearly the nature of the transaction.
Now I think that if for any reason the obligor, David Dunlap, should be relieved from the payment of what he had undertaken to pay on her behalf, or any part of it, during the lifetime of the annuitants to whom it was payable, the benefit of such relinquishment ought to inure to the advantage of Mrs. Nevius, whose debt was thus forgiven and extinguished. If it had been a positive indemnity by way of property pledged, or an indemnifying obligation, the pledge would in equity be required to be given up, or the indemnifying bond surrendered, and so far as the provisions of the bond for the payment of the $3,000 interposed an obstacle, it should be reformed, in order to carry out the intention of the parties.
The papers actually executed show the error almost as strongly as any parol proof could; but the parol evidence is satisfactory to my mind to explain the transaction fully. The father did not want or expect to have the whole $1,050 (or $820, if William gave no bond), which the bonds represented, paid to him; but they were taken to guard against contingencies which were not expected to happen, but which might by possibility occur. In the meantime he received such small sums as his necessities required, and regularly made indorsements on the bonds setting forth that the annual payments, as they became payable by the terms of the obligations, were paid. I think it is very clear equity that Mrs. Nevius, or her representative, should have the benefit of this relinquishment, so far as it concerns her obligation, which the defendant's testator had assumed.
Holding the case on the part of the plaintiff proved, I see no formal objection to the relief which was adjudged to her representatives. The point that the representatives of the *Page 687 elder Dunlap should have been made parties, is not tenable. The bond runs to Mrs. Nevius, and it was delivered to her father for her use. It immediately took effect as an operative bond in her favor. It is not verbally in the terms of the obligation actually assumed, that the obligor should pay such interest as he did not pay the father; but this can be remedied by making it conform to the agreement, and this the court has done. The benefit of this accrues to the estate of Mrs. Nevius, and not to that of the father, to which nothing is due.
I do not think it was necessary to make the representatives of the elder Dunlap parties, for the purpose of seeking a reformation of the bond of David to his father. As I understand the evidence, that bond was given up to David before his father's death, and there is no evidence of any claim having been made under it after the death of the father.
I am in favor of affirming the judgment appealed from
Judgment reversed, and new trial ordered. *Page 688