dences of debt by testimony showing that their execution and delivery by the defendant was induced by the declaration of the plaintiff that the signature of the former was required as mere form, and that he should never be called on for payment. "It is objected," said Chief Justice Tilghman, "that no adjudged case goes so far as the present; because here the evidence is in total destruction of the defendant's obligation. But the principle is the same, whether the obligation be destroyed in whole or in part. In either case it is broken in upon. The destruction of a written instrument by parol evidence may seem dangerous, and in fact it is so. But the community would be in a still worse condition if it were established as an inflexible rule that when a man's hand was once got to an instrument, no matter by what means, the door should be shut against all inquiry."

This was followed by Lyon v. The Huntingdon Bank, 12 Serg. & R. 283, than which it would be difficult to produce an adjudication more strongly illustrative of the doctrine we are considering, or one furnishing a clearer light to guide us to a correct conclusion. It was an action of debt brought upon a bill single, executed in satisfaction of a prior promissory note, drawn by the defendant in favor of the plaintiff for ten thousand dollars. Though several years had elapsed between the first and last transaction, the defendant was permitted to prove in bar of the action, that when the first note was given, certain securities held by the defendant were assigned to the plaintiff, under the express stipulation and agreement that those should be looked to as the source of payment, and that the defendant was in no event to be held liable upon his notes. In delivering the opinion of the court, the late chief justice, after stating the general rule prohibitory of the introduction of parol proof to control or alter a written agreement, observed: "But the evidence offered in this case does not fall within that rule. It was not pretended that there was anything wrong in the single bill, or that any alteration whatsoever should be made in it. The object of the evidence was to show that it was subject to an agreement, made long before its date;" and he then proceeded to make it manifest that, under such circumstances, a chancellor would grant relief upon the ground that the attempt to enforce payment was fraudulent and against conscience. As authority, favoring the receipt of parol testimony to prevent fraud, it goes further than those cases which confine such testimony to what occurred at the execution of the written instrument; but all proceed upon the same

principle, forbidding the fraudulent application of a rule in itself intended to prevent fraud.

To the cases already cited may, I think, fairly be added Hain v. Kalbach, 14 Serg. & R. 159 [16 Am. Dec. 484], which recognizes fully the power of a parol understanding or agreement to defeat, in whole or in part, a specialty for the payment of money, where the understanding was the inducement leading to the execution of the specialty.

Nor is it essential to the admission of parol evidence that a fraud was originally intended. It is enough that, though the parties acted in mutual good faith at the inception of the transaction, an attempt is made to wrest the instrument to a purpose not contemplated, or use it in violation of the accompanying agreement. It is as much a fraud to obtain a paper for one purpose, and use it for a different and unfair purpose, as to practice falsehood or deceit in its procurement. The primary honesty of purpose but adds to the moral turpitude of the subsequent effort to escape from it; or when moral guilt can not be imputed, as perhaps in our case, a legal delinquency attaches upon an attempted abuse of the writing sufficient to subject it to the influence of the oral evidence: Lyon v. The Bank, supra; Oliver v. Oliver, 4 Rawle, 141 [26 Am. Dec. 123]; Parke v. Chadwick, 8 Watts & S. 98; Renshaw v. Gans, 7 Pa. St. 117. What is the contest before us? In answering this question, we must accept the offers made by the defendant below as founded in truth, and capable of proof. These present us a case in which a father, with a view to the division of his estate, induces his son to enter into a contract for the purchase of a piece of land at a certain price, but subject to an express stipulation, that unless the future necessity of the father should compel it, no part of the purchase money was to be called for, and that in the event of the father dying without being compelled to make the call, the land was to be held by the son, free of claim, as his purpart of the ancestor's estate. The chance of thus escaping payment was the inducement for assuming the possible burden of the contract; but that possibility having passed, the effort of the executors is to convert the agreement into an instrument of profit, for the benefit of the devisees named in the father's will, irrespective of the rights of the son under it. This is a fraud upon the alleged contemporaneous agreement, sufficient, under the principles reviewed, to open the way for the rejected proof.

But the court below seems to have been misled by the idea that there was something in the deed and will made by the testator which forbade its introduction. I confess that, looking to the original written agreement, the deed executed, and the will, I am inclined to the opinion that they rather favor than repel the allegation of an oral arrangement. But were this otherwise, nothing contained in either of the latter instruments can be allowed to exclude the offered proof, for the simple reason that the posterior acts of the testator are of themselves incompetent, either to affect the original arrangement between the father and the son, or to change the medium of proof.

What has been said, we think, makes it clear the evidence mentioned in the first bill of exceptions ought to have been received. But this necessarily draws with it all the subsequent declarations of the testator on the same subject, not as explanatory of the deed, or elucidating the meaning of the will, but as corroborative of the original agreement. Having first proved that, there remains no technical difficulty barring the introduction of subsequent recognitions of it, to which frequent repetition might lend a powerful effect. This course of remark is not, however, intended to make us oblivious of the danger attendant upon the introduction of oral evidence in cases like the present. Of this we are fully sensible; and juries, upon whom devolve the duty and responsibility of weighing its value and estimating the degree of credit to which it may be entitled, should be warned against the indulgence of easy credulity, and instructed that the overthrow or modification of a solemn written agreement can only be safely ventured under clear, distinct, and entirely satisfactory proofs. Yet, to judge of this belongs to them; we can but declare the competency of the evidence; it is theirs to award the credit due to it.

But it is urged, the rejected matter was inadmissible under the pleadings in the cause.

The plea is, covenants performed. Under this plea, ever since Bender v. Fromberger, 4 Dall. 439, upon notice to the plaintiff, the defendant may give anything in evidence which he might have pleaded.

But, certainly, under the written rules of the common pleas of Union county, notice of the special line of defense assumed below was requisite; and, had this objection been specifically made on the trial, it would have been difficult, if not impossible, to answer it. But we never sustain the objection in this court, unless it clearly appears to have been taken below; for other.

AM. DEO. VOL. LI-35

wise it is impossible it should appear of record, whether there is notice or not, since this is never pleaded, nor otherwise made apparent unless specifically called for. Here the objection below may or may not have pointed to want of notice. It is general, and may have referred to the inaptitude of the plea, without reference to notice. Certain it is, the decision of the court dal not proceed upon any alleged want of notice, and it is impossible for us to say, with safety, that ground was taken. It is a sufficient answer that it does not so distinctly appear of record. This has been more than once decided.

It follows that the court of common pleas erred in rejecting the offers mentioned in the second, third, fourth, and sixth bills of exception. The same is true of the fifth bill, for this is, also, corroborative of the defense. It may, in the end, weigh but little in determining the judgment, but it is certainly relevant, especially in connection with the terms of the will.

The evidence of tender of the deed, executed by the testator in his life-time, was rightly received. The objection made was that the executors had no authority to make the tender. But this is a misapprehension. The testator expressly directs the agreements between his three sons, Henry, Conrad, and Christian, to be carried into effect, and on his part, by his executors. This could only be done by tender of the deeds, noticed in the will as having been executed, one of which was the deed in question. The executors had, therefore, express authority to make the tender, and this sufficiently appears to have been done by both of them. The subsequent offer of the widow's release, by one of them alone, does not affect the prior tender. I do not, however, wish to be understood as ruling that a tender by one of the executors, with the approbation of the other, would have been insufficient.

Judgment reversed, and a venire de novo awarded.

EVIDENCE OF PRIOR OR CONTEMPORANEOUS PAROL AGREEMENT TO CONTROL WRITTEN CONTRACT: See Wren v. Wardlaw, 12 Am. Dec. 60; Reed v. Van Ostrand, 19 Id. 529; Adams v. Gray, 20 Id. 82; Atwood v. Cobb, 26 Id. 657; Jones v. Hardesty, 32 Id. 180; Boyle v. Agawam Canal Co., 33 Id. 749; Thompson v. Sloan, 35 Id. 546; Spann v. Baltzell, 46 Id. 346, and notes. As to the admissibility of a subsequent parol agreement varying a writing, see Cummings v. Arnold, 37 Id. 155; Spann v. Baltzell, 46 Id. 346. See generally, as to the admissibility of parol evidence to contradict, control, or vary a writing, Foley v. Cowgill, 32 Id. 49; Beach v. Packard, 33 Id. 185, Tucker v. Baldwin, Id. 384; Hayworth v. Worthington, 35 Id. 126; Osgood v. Davis, 36 Id. 708; Brooks v. White, 37 Id. 95; Henderson v. Mayhew, 41 Id. 434; Exeter Bank v. Stowell, Id. 716; Grice v. Scarborough, 42 Id. 391; Nor

wood v. Byrd, Id. 406; Baldwin v. Carter, Id. 735; Holmes v. Charlestown etc. Ins. Co., 43 Id. 428; Adams v. Wilson, 45 Id. 240; Reed v. Austin, 46 Id. 336; Allen v. Lee, 48 Id. 352; Bank v. Fordyce, 49 Id. 561; Union Bank v. Meeker, 50 Id. 559, and numerous other cases cited in the notes to those decisions. The English rule, that parol evidence is inadmissible to vary the legal operation of a written instrument, is not the law of Pennsylvania: Chalfant v. Williams, 35 Pa. St. 212, 215. Where equity would set aside an instrument for fraud, accident, or mistake, parol evidence is admissible to contradict or vary it: Martin v. Berens, 67 Id. 463. So if it is attempted to be used in violation of a parol agreement accompanying its execution, though no moral guilt is imputable: Levy v. Moore, 1 Phil. 325. In an action on a written contract for the sale of a colliery for a gross sum to be paid at a certain rate per ton of coal mined, parol evidence is admissible to show that it was agreed at the time that the vendees should not be bound to mine the necessary amount, and that the vendor was to take the risk of their doing so: Chalfant v. Williams, 35 Pa. St. 212, 215. So parol evidence of the declarations of a grantee in a deed, showing fraud in obtaining it, are admissible: Horn v. Brooks, 61 Id. 407, 409. In all the foregoing cases, Rearich v. Swinehart is recognized as authority. In Fulton v. Hood, 34 Pa. St. 374, it is said that the principle of the case, and of Renshaw v. Gans, 7 Id. 117, cited therein, is, that where a paper is obtained for one purpose and is subsequently used for a different and unfair purpose, it is fraudulent, and the subsequent abuse will let in parol evidence of what took place at its execution, but that the doctrine extends no further. Evidence of the declarations of a party to a written agreement, at an indefinite time prior thereto, is inadmissible to introduce a new term into the contract, in the absence of any fraud or mistake: Kirk v. Hartman, 63 Pa. St. 97, 106, distinguishing the principal case.

DELIVERY OF Deed after GRANTOR'S DEATH: See Foster v. Mansfield, 37 Am. Dec. 154, and note citing previous cases in this series.

WEST BRANCH BANK v. CHESTER.

[11 PENNSYLVANIA STATE, 282.]

MORTGAGE LIEN IS DIVESTED IN PENNSYLVANIA BY EXECUTION SALE of the mortgaged premises upon a subsequent judgment for the interest of the mortgage debt, the principal being not yet due, and is transferred to the proceeds of the sale, taking priority over all liens subsequent to the mortgage and prior to such judgment.

INTEREST STIPULATED FOR IN MORTGAGE IS PART OF THE Debt.

DISTRIBUTION of a fund in court arising from the sale of certain premises under a judgment recovered by Henry Chester for the interest upon certain loan certificates of the Williamsport etc. R. R. Co. held by him. It appeared that in 1839 the corporation in question, under an act of the legislature, issued loan certificates for one hundred and fifty thousand dollars, the certificates being made payable in 1850, with interest at six per cent. per annum, payable semi-annually. To secure the same, the corporation at the same time executed a mortgage upon its