Harman v. Harman

JEXKINR, Circuit Judge

(dissenting). There can be no doubt that in a proper case a court of equity will give effect to a parol undertaking for the conveyance of land; but, to sanction its recognition, the parol agreement must be clearly and satisfactorily proven, and it must appear with like certainty that the acts of part performance were, to the knowledge and with the consent of the other party, done in pursuance of and in execution of the parol agreement, if such acts of part performance may properly be referred to written contracts existing between the parties, they cannot he deemed to be done in execution of the parol agreement. They must be, to use the language “of Mr. Justice Brown, “manifestly inconsistent with any other theory than that of carrying out the parol undertaking.” Riggles v. Erney, 154 U. S. 244, 251 , 14 Sup. Ct. 1083. The act of part performance must be unequivocal.

Lord O’Hagan, in Maddison v. Alderson, L. R. 8 App. Cas. 467, 485, said:

“It must liavo relation to the one agreement relied upon, and to no other. It must bo sucli, in Lord Ilardwicke's words, ‘as could be done with no oilier view or design than to perform that agreement.’ It must be sufficient of itself, and without any other information or evidence, to satisfy the court, from the circumstances it has created and the relations it has formed, that they are only consistent with the assumption of the existence of a contract, the terms of which equity requires, if possible, to he ascertained and enforced.”

The considerations by which courts of equity should be guided with respect to the enforcement of such parol agreemeufs are stated in *924 Purcell v. Miner, 4 Wall. 513 , and approved in Williams v. Morris, 95 U. S. 444, 456 . The court observes:

“That the proof as to the terms of the contract must he clear, definite, and conclusive, and must show a contract, leaving no jus deliverandi or locus peni-tentise; that it cannot he made out by mere hearsay or evidence of the declarations of a party to mere strangers to the transaction, in chance conversation, which the witnesses have no reason to recollect from interest in the subject-matter, and which may have been imperfectly heard or inaccurately remembered, perverted, or altogether fabricated; that the proof must show that the consideration has been paid or tendered, or that there has been such part performance of the contract that its rescission would be a fraud on the other party, which could not be compensated by the recovery of damages, or that the delivery of possession has been made in pursuance of the contract, and has been acquiesced in by the other party.”

Tlie court observes in the latter case that:

“To take the case out of the statute upon the ground of part performance, the party making the attempt must show by clear and satisfactory proof the existence of the contract as laid in his pleading, and the act of part performance must be of the identical contract which he has in that manner set up and alleged. It is not enough that the act of part performance is evidence of some agreement, but it must be unequivocal and satisfactory evidence of the particular agreement charged in the bill or answer. Specific performance in such case will not be decreed unless the terms of the contract are clearly proved or admitted; and a sufficient part performance is made out to show that fraud and injustice would be done if the contract was held to be inoperative; and all the authorities agree that the acts of part performance must be such as are referable to the contract as alleged, and consistent' with it.”

A general 'discussion of the testimony would serve no useful purpose witbin the scope and for the object of a dissenting opinion. T think it proper, however, to indulge in a review of the testimony so far as necessary to fortify the opinion, which I cannot but entertain, that the court has indulged a wide departure from principle.

Jacob Harman was a peculiar man. He settled in Warren county, Ind., in the early days of that state. He was a thrifty man. By labor, economy, and abstemious habits of life, he had acquired considerable possessions of land in that county and in the adjoining county of Iroquois, Ill., at the low prices at which real estate was obtainable in those early days. The development of those states largely increased the value of his possessions. He seems to have been a man peculiarly careful and exact with reference to his engagements. The testimony, as I read it, discloses him to be a man who at all times and under all circumstances pertinaciously insisted that all contracts with him should be reduced to writing. He seems to have had, what all courts dealing with human testimony will recognize as justifiable, a well-grounded distrust of the reliability of human memory. Whether that distrust was grounded as well upon want of confidence in human integrity I cannot say, but the fact is established as I have stated it. He also bore the reputation of a thoroughly honest man, carrying out with the utmost fidelity the contracts into which he entered, and exacting like performance from those with whom he had engaged. He seems to have been a just man, and withal kind hearted and benevolent. With him some act of inconspicuous .charity seems to have been a daily duty, — not giving with lavish hand merely in aid of present need, but bestowing *925 his bounty in the way of aid to those who were willing to help themselves, and who should approve themselves deserving of assistance, lie was opposed, doubtless upon principle, to that gratuitous giving which injures the recipient, teaching him to rely upon his benefactor rather than upon his own exertions. He seems to have taken interest in the cause of education, entertaining the proper notion that training and learning are better gifts than mere pecuniary bounty, which often proves hurtful rather than beneficial. He was a man without family, never having married, and, at the commencement of the transactions involved, had attained the age of 70 years, lie had five brothers, each of whom had families, and none of whom appear to have been in prosperous circumstances. His brother Anthony Harman resided in Missouri, and had met with financial reverses, through which he was likely to lose his home. Jacob Har-man became possessed with the idea of aiding the sons of this brother; but, as I read the case, he went about it in the same careful, methodical way that he would undertake any other business relating to his property. It would have been foreign to his nature and wholly irreconcilable with his habits of thought and of action, that he should turn over to his nephews, without restriction or limitation, the property which he had acquired by the labor of a lifetime. He chose another, and, as I think, a better, way to aid them. He purposed to place the young men just attaining their majority in a position where, if they were so disposed, they could make men of themselves, earn honest things, and acquire frugal and business habits, fitting them to sustain themselves and their families in the straggle for existence. It will not be necessary to refer particularly to the two causes. One is much the counterpart of the other. Therefore, in the observations which I deem it proper to make, I shall confine myself to the case of Jacob M. Harman.

What, then, was the contraed — the parol undertaking — which the court is asked to enforce? The parol agreement stated in this bill was this: That in 1867 it was arranged that the appellant should move upon the lands of Jacob Harman, in Iroquois county; that they should he cultivated and improved by the appellant and his brother Oscar during the life of their uncle, they paying to him an annual rental, to he fixed by lease, “and that, at his decease, the said Oscar P. Hannan should have in fee for his own the lands which he cultivated and improved, and your orator should have in fee the lands which he should cultivate and improve;” that in 1871 he moved' upon and occupied, with his brother, some 720 acres, they agreeing to pay their uncle as rental one-quarter of the net proceeds of the land, the uncle selling them stock and farm property. A lease was executed for the term of two years, and occupancy was held without further lease until 1875. At this time it was agreed, so the bill alleges, that the appellant and his brother Oscar should settle among themselves which of the lands each desired, the agreement then to embrace some 2,440 acres of land, and each should occupy them in severalty thereafter, and they would jointly engage to pay to Jacob Harman a fixed sum for rental during his life. The specific lands are stated in the bill, which then proceeds; “And he then assured *926 your orator and his said brother that he would fix the lands in his will so that each one should have the fee of the lands allotted to him.” And Jacob Harman then executed a lease for the term of two years to the appellant and his brother Oscar of all the lands occupied by them, by which was reserved an annual rental of $2,200 for the use of some 2,440 acres. The evidence establishes that, during all the period they held possession of the land, the annual rental value was from $2 to $2.50 per acre, they yielding only some 90 cents per acre. The bill further alleges that, substantially contemporaneously with that parol agreement, there was a further parol agreement to the effect that, whereas Jacob Harman had advanced to the appellant and his brother $15,000 in property and money, they should execute their notes to him for the amount, payable in one year, with interest, and that the note was given and received with the agreement and understanding that the interest should be paid during the lifetime of Jacob, and that the principal should never be paid.

It is to be observed that the agreements alleged rest upon the evidence of the appellant, speaking to a transaction with his uncle Jacob, whose lips are sealed in death, and whose voice can no longer be heard in contradiction of any statement this interested party may make. I agree that, under the statute of the United States, this evidence must be considered; the statute only excluding evidence of an interested party in actions by or against executors, administrators, or guardians. In the states with whose legislation I am familiar, and in those to which I have been able to refer, the'law has carefully guarded the admission of the testimony of one touching transactions with a deceased person where that one claims property through such transaction. Such evidence is excluded when the party tendering such evidence derives his title from, through, or under such deceased person. Under such legislation the appellant could not be heard. Under the statute of the United States his testimony would be incompetent as against the executors or administrators of the deceased, but can be received as against devisees under the will of the property in question. I cannot but think that in the drafting of this statute there was inadvertent omission. I cannot believe that the lawmaking power, excluding parties from testifying to transactions with deceased persons as against executors or administrators, would designedly permit the like testimony as against devisees under the will of the deceased. The purpose of the statute is plain, that, where one party to a transaction is dead, the other shall not be heard with respect to personal transactions with him. The reason of the exclusion is as potential in the case of devisees as in the case of executors or administrators. The purpose is to defend the estate from alleged verbal transactions with the deceased, asserted by one interested, when there can be no- one to gainsay his statements. The admission of such evidence shocks the moral sense. The weakest conception of justice revolts at the suggestion. It would be altogether too easy for interested and designing parties, out of alleged conversation with a deceased person, to establish claims to his property. It would be a safe thing to do, for they are assured in advance that no voice can be raised to dispute the claim. “Dead *927 men tell no tales.” Distorted and perjured testimony is safe in the presence of death. Until the statute, the law has never tolerated such an enormity. Formerly parties could not testify in their own behalf, and any interest in the event was considered a disqualification. Of recent years the disqualification from interest has been removed, perhaps wisely, although some might think that the almost invariable contradiction in the testimony of parties to the record, daily evidenced in the courts, would sanction (he opinion that private virtue and public morals would more certainly be promoted by restricting than by extending this innovation upon the common law. However that may be, in permitting the evidence of parties to the record, the various legislatures speaking to the question, with the exception of congress by this, as 1 think, inadvertent omission in the federal statute, have been careful to prohibit any party from testifying to any transaction had personally with a deceased person in any action in which he seeks to assert or defend title derived through such deceased person. 'I am aware that the supreme court, in the case of Goodwin v. Fox, 129 U. S. 601 , 9 Sup. Ct. 367, felt bound by the terms of the statute, and has ruled that such evidence is competent. But it, nevertheless, remains true that the courts are not bound to give the same credence to such evidence as if it were delivered by one indifferent to the result, of the litigation. Xor should such evidence stand upon equal ground with the testimony of the party who can be confronted with the one whose declarations are asserted. We have a right in weighing testimony to consider the great interest that the witness has at stake; and we have a right also, and it is our duty, in such a case as this, to consider that he speaks knowing that no human power can summon from the grave the one who might contradict him or dispute his statements. Therefore, I think that a court of equity should not only apply to the testimony of the appellant the general rule that the evidence of the undertaking should be clear and satisfactory, but should also insist: that such evidence should in all essential particulars stand uncontradicted, and should be fully corroborated.

1 desire to state here, as briefly as I may, some of the facts and circumstances which, in my opinion, contradict the evidence of the appellant, and render his statements wholly inconsistent with his own acts.

When the appellant and his brother first entered into possession of the lands in question, it is conceded that a lease was executed by Jacob Harman to them. That least; is not produced, but it is stated that it was a lease for two years, the rental being one-fourth of the crops produced. The appellant and his brother remained- in possession until about March 1, 1875, the date of the final alleged parol undertaking which we are asked to enforce. If the lease then executed was in pursuance of the parol undertaking set up in the bill, one would naturally look for a lease to continue during the lifetime of Jacob Harman. It was, however, a lease for but two years, and it contains a clause that is utterly and wholly irreconcilable with the alleged parol undertaking. It provides that the appellant and his brother shall replant at the proper time, cultivate, lay down, and *928 prune, as directed by Jacob Harman, certain hedges, and do all the plowing necessary in replanting and cultivating other hedges, and that Jacob Harman shall pay to the appellant and his brother one dollar per day for their labor in so doing. I cannot comprehend by what mental legerdemain that agreement can be reconciled with an agreement by which the appellant and his brother were to own the land, simply yielding to their uncle during his lifetime a stipulated rental. The appellant is as silent as the Sphinx in explanation of this patent and irreconcilable contradiction of his evidence. The court would explain it and reconcile it upon the ground that Jacob Harman had a “partiality for hedges,” and that it was a specialty with him. Jacob Harman may have had a conceit for hedges, but he was not the man to gratify his fancy by spending money in the cultivation of hedges upon other people’s lands. The court seeks also to explain the patent inconsistency by stating that “he wanted to help the boys.” So he did. It is a little remarkable, however, that, advancing $15,000 in money and stock; he should insist upon taking their note and receiving interest for the loan, while at the same time he should pay them money for improving their own land. The reasoning of the court in reconciliation of manifest contradiction is to my thinking far from convincing.

In October, 3876, this lease was by writing extended to March 1, 1878, and in the written extension the appellant and his brother agree to replant, plow, and hoe all the hedgerows, and to prune and lay down all the hedge as it may be needed, all to be done in good order, free from any additional charge. It would seem that Jacob Harman’s “partiality for hedges,” and his desire to “help the boys,” to be gratified by paying for their labor upon their own property, only continued for a period of two years. Thereafter he gratified his “partiality for hedges” at their expense. In March, 1878, by written agreement, the lease was further'extended until March 1, 1882. This writing contains a like provision in respect of hedges and repair of fences, to be done by the appellant and his brother “free from any extra charge.” On the 31st of January, 1882, by agreement in writing, the lease was further extended until March 1, 1885, with like provision as to hedges and fences and buildings, “all to be done without any additional charge, and Jacob Harman reserves the privilege to build a schoolhouse on the north side of section 13.” Are these provisions consistent with the ownership of this land by the appellant and his brother, subject only to an annual rental to their uncle? They do consist with the ownership of the land by the uncle. They conflict and are irreconcilable with any notion of ownership in the nephews. In reconciliation of these latter provisions of the written agreements with the alleged parol undertaking, the opinion of the court and the testimony are alike silent. It may be remarked that, in the case of Jeremiah R. Harman, the lease executed for two years from March 1, 1882, contains a provision that, if either party should die before the expiration of the time, “then the lease to close with the year of such death.” On the 24th of October, 1884, the parties executed another agreement in writing, by which the lease was extended, on the same terms, for a further term, *929 commencing March 1, 1885, and to continue from year to year, on the condition that the appellant and his brother “will quit and gire up possession of said premises at the expiration of any one year in case the party of the first part [Jacob Harman] should sell or convey all or any part of said lands, or in Í lie event that either party should die or become dissatisfied, or in case of the party of the second part [the appellant and his brother] failing to pay all or any pari of the yearly rents or interest on or before the first day of November of any one year.” The written agreement contained a further condition for the 'keeping “in good repair the houses and other buildings, also fences, hedges, drains, etc., without any further charges for the same.” Wlmt shall be said in reconciliation of this agreement with 1he alleged parol undertaking? Its execution is admitted, but the interested parties- ray that, in their judgment, tlieir uncle Jacob Harman was nearly or quite insane at the time. Jacob Harman was then upon Ms bed of sickness, which not long after proved to be his bed of death, it is said the agreement never became operative, because the uncle died before the 1st day of March, 1885. It is said that the parties signed this paper because their uncle was fretful and suspicious, and was in a condition of mind bordering on insanity, and that their uncle told them: “Sign, for it will make no difference; 1 intend you shall have the land just the same.” The appellant siates that he signed it for fear his uncle might do something that would be “detrimental to our interests.” For these reasons the court Ignores this document, and holds the appellant not concluded (hereby, and that, even as an admission, it is not sufficient to overcome his oral testimony.

With resped: to the alleged insanity of Jacob Harman, it may be said that, if he was insane, the appellant and Ms brother certainly wore not insane, and a contract with an insane person in the state of Illinois, where this land is situated, is voidable only, not void,— voidable by (he insane!, not by the sane, party thereto. McCormick v. Littler, 85 Ill. 62 ; Scanlan v. Cobb, Id. 296; Burnham v. Kidwell, 113 Ill. 425 . It is like to a contract with an infant, — voidable by him, but binding upon the other party.

A word wiih respect to tin! excuse offered for the execution of this instrument. If those nephews had a contract by which they were entitled to the land absolutely upon the death of their uncle, how could he by any act deprive them of any of their rights, whether he was sane or insane? There is, however, no evidence of his insanity. It is, true that he was upward of 80 years of age. lie was afflicted with the bodily infirmities of age. He may have been peevish and fretful, irritable and exacting. Is that ground for refusing to recognize the deliberate engagements or admissions of parties? He appeal’s to have been mentally unaffected by the diseases of Ids body so far as respects the careful consideration of his business interests, and the «‘cognition of Ms duty to those dependent upon Ids bounty, and to (hose benevolent objects which had engaged his interest. His will, executed on the 4th day of February, 1885, is before us. It contains 20 clauses with respect to the disposition of Ms *930 estate. Each clause is expressed with a particularity of detail that could only emanate from a sane and disposing mind, and the whole instrument evidences deliberate conclusion with respect to the distribution of an estate by one who had carefully considered his duty. The instrument is, to my thinking, a photograph of the man, as I read his mental characteristics in the evidence in this record. He gives to his brother "Anthony and to his nephew John, the son of Anthony, as joint tenants for life, with right of survivorship, a life estate in 609 acres of land in Warren county, and vests the fee upon their death in the sons of John then living. He gives to his nephew Waldo, another son of his brother Anthony, for life, 740 acres in Warren county, with remainder in fee to his sons. He gives to the appellant, another son of his brother Anthony, a life estate in 600 acres in Iroquois county, part of the lands in controversy, with remainder in fee to his sons; and to Oscar 1\, another son of his brother Anthony, for life, 560 acres, part of the lands in controversy, with remainder in fee to his sons. He gives to Jeremiah R. Harman, another of the appellants, and a son of his brother Anthony, 440 acres, part of the lands in controversy, for life, with remainder in fee to his sons. He gives to the three sons of his brother David a life estate in 709 acres of the land in Iroquois county, for life, with remainder in fee to their sons. He gives to the'trustees of Wabash College 640 acres of the land in controversy in trust, the rentals to be used to found a perpetual scholarship for the use of the Harman families, so that some one member of the families of his five brothers shall have free tuition thereat during all time. He imposes upon the lands devised to his nephews an annuity in perpetuity of 25 cents an acre, to be paid to the American Bible Society for the purposes of that institution. He makes careful provision for the payment of taxes upon the lands by the tenants for life. He bequeaths to his nephews residing in Warren county and in Iroquois county, including the appellants in these causes, $1,000 each, which shall be deducted from any sum each such legatee may owe the estate. He directs that his executors take no account of his household goods and his horse, but they shall inventory and appraise the leases held by him against his five nephews, including the appellants here. This will, which was duly probated without contest by these appellants, is stronger evidence of the sanity and the disposing power of mind of Jacob Harman than the unreliable and not disinterested statements of these nephews, offered in tame excuse for their signatures to a document which is in absolute contradiction of the alleged parol undertaking. I care not whether the court treats it as a contract or as an admission. It was at least their solemn statement in writing, under seal, at a time when they had no interest to distort the truth. The writing is in entire accord with every written instrument they signed. It is in accord with every act of the appellant touching the land. It is far more reliable evidence than the present statement of a parol agreement that I think is in conflict with every act done and every paper signed. It ought to prevail over the testimony of an interested party whom death has relieved from the possibility of *931 contradiction by the one out of whose mouth is sought to be established this parol undertaking.

Bui, that is not all. There are other paper writings equally inconsistent with the alleged parol undertaking. In 1876, the year following the making of the alleged parol agreement, the appellant and his brother executed an instrument which acknowledges the receipt from their uncle of the sum of $400, in payment of all demands “on account of buildings, hedge planting, and cultivation, laying down and pruning, making ditches, tile draining, or aiiy other improvements, of whatever kind or nature, on the lands belonging to said Jacob Harman, now occupied by us in Iroquois county and state of Illinois.” In this instrument they further agree to keep in repair the fences, buildings, and hedges so long as they may occupy the lands, and to make no further charges against their uncle or his estate after his death for any buildings or fences they may put on the land, and to offer no claim on account of such improvement as an offset against rents or interest upon the promissory note of $15,000. If this parol agreement existed, how is it possible that, within one year after it was made, we find the appellant receiving and the uncle paying for improvements upon lands in which the uncle "was not interested, except with respect to the receipt of a rental previously stipulated? Why is it that we find the alleged equitable owner of the land covenanting, with one who had merely the right to a stipulated rental, that the fences, buildings, and hedges should be kept in repair? Such a stipulation is ordinarily made by tenants. If is a covenant usually made with «'sped to another’s property, not with respect to one’s own property. It is a stipulation in antagonism to and wholly irreconcilable with the alleged parol undertaking. On the 1st of March, 1878, there is another agreement signed by all the parties, and confessedly in the hand-writing of the appellant. Tt recites that it. is executed in connection with the extension of that date of the lease. The appellant thereby agrees to fence a certain field, and to put thereon not less than 150 rods of tile, sufficient to drain the field, and to cultivate a hedge around the field, and to plant and cultivate a grove upon the land; all to be done at his own expense, without farther charge, for which, the agreement recites, “Jacob Harman has this day paid unto the said Jacob M. Harman the sum of $1, 500.” There is the further provision that the appellant may fence a certain other field, and cultivate the same by hedging and tiling that part which he may fence and cultivate', as said Jacob Harman may direct. There is the further stipulation that the agreement is in no way to interfere with the amounts to be paid as specified for rents in the original lease. This is accompanied by the bond of the appellant to his uncle for the faithful performance of the work in the contract specified. There is attached to this agreement a receipt dated March 3, 187!), executed by the appellant, acknowledging the receipt from his uncle of the $1,500 specified in the agreement. In June, 1879, another document was executed by the appellant, which acknowledges the receipt from his uncle of $250, in full payment of all demands against his uncle, “including everything due me on account of fences, built, ditches and *932 drains made, hedges planted, cultivated, or pruned on the land owned by the said Jacob Harman in Iroquois county, in the state of Illinois.” And, in consideration of such payment, the appellant agrees to properly cultivate and keep in order the hedge and fences, and to make no charge against his uncle, or his estate after his death, for any improvements which he has heretofore put “upon the lands of the said Jacob Harman in said Iroquois county, state of Illinois, or offer any claim on account of such improvements as an offset against rents or interest due said Jacob Harman, his heirs, executors, administrators, or legatees, from me, so long as I shall remain in possession of said lands, when such improvements or work may be done.” He further acknowledges “the full settlement by the said Jacob Harman of all sums paid by me for him on the taxes upon his land in Iroquois county, state of Illinois, by an allowance of said taxes upon the rent due said Jacob Harman for (from) me for a portion of said lands.”

I need not stop to comment upon the lame and halting excuse which the appellant offers for the execution of these papers. He states that he never received either of the sums mentioned, and that his uncle “wanted us to sign the receipt to prevent the heirs of Jacob M. and Oscar, in case of our death before, theirs, from making any claim for these improvements.” If that parol undertaking existed, there could be no claim for such improvements, and the parties knew it. The appellant would have us believe that his uncle, his brother, and himself, during all these years, by these written documents, were living a lie-, and to nc purpose. I cannot bend my judgment to sweep away these deliberate written' documents upon any such paltry excuse, if the law permitted me to exercise the discretion to do so. These documents are under seal containing covenants. They are not mere receipts. They are not open to be disputed or controlled by parol evidence. The Cayuga, 16 U. S. App. 577, 8 C. C. A. 188 , and 59 Fed. 483 .

There is further introduced in evidence receipts executed by the appellant and his brother in the years 1878,1880,1881,1883, and 1884, acknowledging the receipt from their uncle of over $4,000 to pay taxes on personal property upon the lands, and taxes upon the lands themselves, in which these lands are referred to as the real estate of Jacob Harman. The rental of the property was fixed and determined. It was subject to no abatement. If the land belonged to the nephews, and they were to occupy it, improve it, and have it for their own, yielding during the life of the uncle less than one-half its rental value, how is it that we find the uncle paying taxes year after year upon the real estate which they would have the court believe belonged to them, and not to the uncle? Jacob Harman died in the early part bf the year 1885. His will was duly probated, without opposition from the appellants. His will made some changes as between the nephews in respect to the lands previously occupied by them. After the death of the uncle, they exchanged their possessions to conform to the provisions of the will, thus recognizing the right of their uncle to make such disposition of these .lands as he thought fit. This is a circumstance not without weight, tending to show that the alleged parol agreement was an afterthought. It was not until 1892, after the *933 executors in the administration of their duty bad obtained a judgment against the appellants upon the note to their uncle of §15,000, which they carried by writ of error to the supreme court of the United Htates, where the judgment was affirmed (Harmon v. Adams, 120 U. S. 363 , 7 Sup. Ct. 553), and not until the filing of the bill in this cause, that this parol agreement is asserted. During these seven years following the death of the uncle, we find acquiescence in the provisions of the will, and recognition of ownership and right of disposition by hint over the lands in question.

I do not care to follow the court at any length in its review of wliat is called tlie corroborating evidence of neighbors of Jacob Harman, attempting to detail chance expressions of Ms, during a period of many years, concerning the lands in question. These parties, possibly at the suggestion of interested persons, recall loose bits of conversation at different times had with Jacob Harman. They had no interest and no reason to accurately remember what wits said, and they are called up in memory, certainly some 10 years or more after they were said, under such circumstances that I can put but little reliance upon flu* accuracy of memory. It would be unsafe to do so.

It was well observed by the supreme court of Pennsylvania in Rankin v. Simpson, 19 Pa. St. 471:

‘■If a parly calls on courts to execute parol contracts for lands in spile of the statute of frauds and perjuries, let him prove a contract. Because lie can lord persons who remember tlie owner's loose or casual declarations of a sale, shall lie have a decree in disregard of the statute, and in opposition to his own declared convictions? Tlie chancellor has never lived who would tolerate such a demand. Patents and deeds and wills would be a solemn mockery if they might be trifled with and set aside in this manner.”

A careful review of these declarations will, in my judgment, show nothing inconsistent with the ownership of this land by Jacob Har-man, and will show no tiling corroborative of the alleged parol undertaking. There was nothing said, as I view the testimony, that is at all inconsistent with the uncle’s absolute ownership of the land. The testimony does, indeed, show many expressions of his intention that his nephews should have the land at his death, which, if reliable, would lead to the belief that Jacob Harman did entertain the intention, his nephews proving worthy, to give them the whole or a large part of these 2,400 acres of land; but the testimony falls far short, in my judgment, even if implicit credence be given io it, of showing a present binding contract. Thus, one witness, TMr. Foster, states that Jacob Harman said he intended that the land and moneys should be theirs, — “I intend them to have if.” Such declarations, when made to the intended beneficiaries, doubtless raise natural expectations, and may possibly induce action upon faith in the declarations, but they serve only to announce present revocable intention, not a binding contract. Tlie testimony of Mr. Davis, upon which great stress is laid by the court, is to the effect that, in 1882, Jacob Hannan executed deeds which contained the description of the lands sought to be charged by this alleged parol undertaking. He also executed deeds in 1880 and in 1881. This fact alone indicates a certain intention to give to his nephews at his death certain of these lands, but also indicates a change of intention from year to year with respect to the *934 particular lands which he would give to each. These deeds were never delivered, and were never intended to be delivered until his death. He designed and carefully provided to that end, ánd they were destroyed by him in his lifetime. Such evidence does not prove or tend to prove an absolute irrevocable parol undertaking to convey these lands. The entire testimony discloses that the purpose of the uncle with respect to his nephews rested in intention, not in contract.

It may be remarked as passing strange that the court should have considered and in part relied upon the testimony of the attorney of Jacob Harman as confirming this alleged parol agreement. The evidence referred to, like all the evidence detailing conversation, is far from conclusive, is full of uncertainties, and does not correspond to the established facts of the case. I refer to it, however, to remark astonishment that the court should have considered it at all. The witness was the attorney for Jacob Harman, and testified to communications made to him in that relation. He obtained the information in his professional capacity. His duty required him to refuse to disclose the communications of his client; and, if he was so far forgetful of his duty that he was willing to disclose, the law will not permit such disclosure without the consent of the client. The law requires that, with respect to statements by client to counsel, the lips of the latter shall be forever sealed, unless opened by the client, and this does not cease by the sundering of the ties between attorney and client, nor- upon the death of the client. The inhibition of the law is enduring, prohibiting at any time and under all circumstances the disclosure of the confidential communications of the client.

I need not further pursue this branch of the case. The alleged parol agreement is not made out by clear and satisfactory evidence, and is in the face of and in direct contradiction of every written document'signed by the parties now asserting ownership of the land.

The following cases may profitably be referred to in this connection as forceful to deny the relief sought: Semmes v. Worthington, 38 Md. 298 ; Shellhammer v. Ashbaugh, 83 Pa. St. 24; Gerry v. Howe, 130 Mass. 350 ; Chalker v. Chalker, 5 Redf. Sur. 480; Hoar v. Hoar, Id. 637; Ellis v. Cary, 74 Wis. 176 , 42 N. W. 252 ; Alderson v. Maddison, 7 Q. B. Div. 174, affirmed on appeal L. R. 8 App. Cas. 467. The last case is quite instructive. The defendant there had been for some years housekeeper of Mr. Alderson. She entered his service in 18⅛5, when 16 years of age; remained until 1860, and, her wages being then considerably in arrears, she determined to quit his employment; but he, being an old man, and anxious that she should remain, promised her if she would remain and continue to serve him during his life, and would forbear to press for her wages, he would, in view of the past and the future, leave her a life interest in the Manor House farm, which- he expected to receive from his uncle, and in any other property of which he might be possessed, and would eventually secure such life interest to her; and it was mutually agreed between them to that effect.' On the faith of that promise, she continued to serve him until his death, in 1877. By his will, he left the property in question to her, according to his agreement, for her life; but, through *935 inadvertence, the will, though signed by Mr. Alderson, was not properly attested, and therefore failed. Here, as there, was an alleged promise, made upon consideration, to devise by will a certain interest in land. Here, as there, is alleged full performance by the promisee of the condition. There was solemn recognition by the promisor of the obligation; not so here, for the deliberate writings of the parties speak to the contrary. The court held that there could be no recovery. The discussion of the case by Lord Justices Bramwell, Bag-gallay, and Brett, in the court of appeals, and by Lord Chancellor Belborne, Lord O’Hagan, Lord Blackburn, and Lord Fitzgerald, in the house of lords, was able and exhaustive, and leaves no room for suggestion. The argument is, as I think, conclusive against the right of the appellant here.

We find the appellant in possession of certain lands under written lease. He alleges a parol undertaking for the conveyance of those lands, and claims that his possession was under that agreement. The presumption is that possession is referable to the written agreement, and not to the parol undertaking.

Thus, Baggallay, L. J., in Alderson v. Maddison, supra, speaking of possession as an act of part performance, observes:

"The admission info possession of a slrnngor is, speaking in general terms, a sufficient i)art performance, for it is not explicable upon any other supposition than that it has resulted from a contract in respect of the lands of which possession has been given. Again, the continuance in possession of a tenant is not in itself a sufficient part performance of a parol agreement for the purchase from the landlord, for it is equally consistent with a right depending upon his tenancy.”

it is well settled that, in the absence of fraud, accident:, or mistake, parol evidence should not be allowed to contradict the terms of a written agreement; that the writing speaks, and conclusively, the conclusion to which the parties have arrived; and that all prior negotiations are merged in it. ’To sustain these appeals, the majority opinion invokes the rule that when an agreement is made, and is but partially reduced to writing, it is competent to show the agreement which rests in parol. There cannot be dispute of this general rule, and the court rests its judgment squarely and frankly upon it. But, strangely enough, the court has overlooked the recognized qualification and limitation of the rule, — that the oral agreement must be consistent with and must not contradict the stipulations of the written contract.

In Union Stock Yards & Transit Co. v. Western Land & Cattle Co., 18 U. S. App. 438, 453, 7 C. C. A. 660 , and 59 Fed. 49 , this court recognized and asserted the rule and its qualification. We there said:

“Parol evidence may be received of Hie existence of an Independent oral agreement, not inconsistent with the stipulations of the written contrae!, in respect to a matter to which the writing does not speak, but not to contradict the contract.”

The principle was reasserted by this court in Gorrell v. Insurance Co., 24 U. S. App. —, 11 C. C. A. 240, 246 , and 63 Fed. 371, 377 . It is there said that the admission of the parol evidence there offered would have been in plain violation of the familiar rule “which precludes the admission of parol evidence to contradict or snbstan- *936 tially vary tlie legal import of a written agreement.” Tlie court further observed that “the rule that, where an oral agreement has been but partially reduced to writing, the whole agreement is open to proof, is not applicable. The proof proposed here was of an agreement inconsistent with the writing, which in itself is complete and unambiguous.” The principle is well established, and has been uniformly asserted by the supreme court, that, in the absence of fraud, accident, or mistake, parol evidence of an oral agreement alleged tó have been made at the time of the written contract cannot be permitted, either at law or equity, to vary, qualify, or contradict, or add to, or subtract from, the absolute terms of the written contract. Specht v. Howard, 16 Wall. 564 ; Forsyth v. Kimball, 91 U. S. 291 ; Brown v. Spofford, 95 U. S. 474 ; Insurance Co. v. Mowry, 96 U. S. 549 ; Thompson v. Insurance Co., 104 U. S. 252 ; Bast v. Bank, 101 U. S. 93, 96 ; Martin v. Cole, 104 U. S. 30, 38 ; Richardson v. Hardwick, 106 U. S. 252 , 1 Sup. Ct. 213; Burnes v. Scott, 117 U. S. 582, 585 , 6 Sup. Ct. 865; Falk v. Moebs, 127 U. S. 607 , 8 Sup. Ct. 1319; De Witt v. Berry, 134 U. S. 316 , 10 Sup. Ct. 536; Seitz v. Machine Co., 141 U. S. 518 , 12 Sup. Ct. 46.

In Thompson v. Insurance Co. there was set up a parol agreement, made on receiving the written agreement, that the policy of insurance should not become void on the nonpayment of the note alone at maturity, but was to become void at the instance and election of the defendant, which election had never been made. Mr. Justice Bradley, delivering the opinion of the court, observes:

“As this supposed agreement is in direct contradiction to the express terms of the policy and the note itself, it cannot affect them, hut -is itself void. * * « But a parol agreement made at the time of issuing the policy, contradicting the terms of the policy itself, like any other parol agreement inconsistent with a written instrument made contemporary therewith, is void, and cannot be set up to contradict the writing. So, in this case, a parol agreement supposed to be made at the time of giving and accepting tire premium note cannot be set up to contradict the express terms of the note itself and of the policy under which it was taken.’’’

The courts of the states, with the possible exception of Pennsylvania, have uniformly asserted the rule. The supreme court of Wisconsin in Hei v. Heller, 53 Wis. 415 , 10 N. W. 620 , has gone so far as to hold that, to permit evidence of a parol undertaking contemporaneous with a written contract, it must appear from the writings themselves that the whole agreement was not reduced to writing. I remark this without expression of any opinion upon the correctness of that ruling.

The reason of the general rule is obvious, and is thus quaintly stated by Lord Coke, in Countess of Rutland’s Case, 5 Coke, 26a:

“It would be inconvenient that matters in writing-, made by advice and on consideration, and which finally impart the certain truth of the agreement of the parties, should be controlled by the averment of the parties, to be proved by the uncertain testimony of slippery memory; and it would be dangerous to purchasers and all others in such cases if such nude averments against matter in writing should be admitted.”

The court invokes as applicable here the rule that a court of equity will receive oral evidence to show that an instrument of conveyance, absolute on its face, was in reality intended as a mortgage *937 security only. This principle is an exception to the general rule, and is tolerated upon the ground that one who requires an absolute deed when the transaction is in reality a loan is guilty of a fraud against which equity will relieve. It may be said that in such case the law permits oral evidence of a defeasance in contradiction of the deed. That does not seem to be the ground upon which the cases bottom the rule. Even if if may be said to be a contradiction of a written instrument by oral testimony, it is confessedly an exemption, grafted upon the general principle, and in prevention of fraud. The court here, ás I think, has swept away the general principle, and made the exception the rule, and the rule the exception. I see no escape from the conclusion that the decision here, carried to its logical consequence, throws wide open the door for the admission of oral testimony in contradiction of the written agreement of parties; and herein lies a fundamental and serious error info which, as I think, the court has fallen.

The court is of opinion that the appellant’s case with respect to the S 15,000 note stands upon a different footing than the alleged parol undertaking for the conveyance of the land. The court finds that Jacob Harman intended to give his nephews the principal at Ms death. Indeed, having held the parol undertaking to have been made as charged, it should also have been found that Jacob Har-man agreed with his nephews, in consideration of their paying him 10 per cent, interest upon the amount during his life, that the principal should go to them at Ms death. The agreement stands upon the same fooling with the parol undertaking for the conveyance of the land, has as strong a consideration to support it, and is equally as binding. In the one case, the nephews have the money, paying a large rate of interest; in the other, they have the use of’the land, paying but one-half its rental value. Tl'ieir right to the principal at the death of the uncle rested in contract, as does their right to the land. In the one case the court gives them the land, and in the other doilies them the principal they had contracted for. The court says with respect to the enforced payment of the principal of the note: “They have not much to complain of in equity and good conscience.” I agree with the court. But they have as little 1o complain of in one case as in the oilier, and, if they have a right to complain in the one case, they have in the other. If their rights rest in contract, they have right to relief as to both land and money. If their claims rested simply in the intention of their uncle, they have right to neither. The court finds in the one case it was contract, and in the other case that it was intention; finding, however, that there was consideration with respect to both. I cannot comprehend the logic by which the court reaches a conclusion which seems to me paradoxical.

A word with respect to the general equity of the case. In suits of this character, courts are asked to exercise an extraordinary jurisdiction. They should look to the substantial justice of the case. They should be satisfied that a fraud would be perpetrated upon the party seeking to enforce an alleged parol agreement if his prayer be not granted. The appellant, for 10 years prior to the *938 uncle’s death, occupied 1,640 acres of this land, at a rental of 90 cents an acre. He says that during that time he expended $9,000 in improvements upon the place, mainly in the way of drains and fences. The written evidence would indicate that Jacob Harman paid, at least to some considerable extent, for these improvements. But, conceding the fact to be as stated, they were such improvements, according to the appellant’s evidence, as were necessary and customary to permit the land to be worked to advantage, and were made from money derived from the cultivation of the land. It may be fairly inferred from the evidence that during all these years Jacob Harman paid the taxes upon these lands. So that the appellant, during his 10 years’ occupancy of the 1,640 acres of land, saved- $1,804 per annum in rental, the difference between the rental paid and the fair rental, of the land, amounting in all to $18,040. He expended $9,000 in improvements, which, deducted from the sum above mentioned, leaves a clear profit and saving to him of $9,040 from his possession of this land.. It is well settled that where the improvements made are such as are required by ordinary husbandry, and do not exceed in value the rents and profits enjoyed, a case is not made out for the interposition of a court of equity, although the parol undertaking mav be clearly established. Bailey v. Edmunds, 64 Ill. 125, 128 ; Padfield v. Padfield, 92 Ill. 198 ; Wallace v. Rappleye, 103 Ill. 229, 252 ; Cassel v. Cassel, 104 Ill. 361 .

By the will of their uncle Jacob Harman, the five sons of his brother Anthony, including the appellant, out of an estate of 4,200 acres of land, are given for life some 2,900 acres of land, with remainder to their children, being over two-thirds of the entire estate. The appellant receives 600 acres of land, his improvements being upon such land. I fail to grasp the persuasive equity which induces the court to say that, if a rule of evidence should prevent relief here, “a court of equity might almost as well shut up its doors, and turn the parties over to their rights at law.” I cannot agree that a rule of evidence which prohibits oral testimony in contradiction of the written agreement of parties — a rule absolutely essential to the protection of rights of property — should be summarily swept away to meet the supposed equities of the case in hand. If the rule established by the court in this case should be followed, it logically results, as I think, that all written obligations, all titles to land, are held at the mercy of parol testimony and of the uncertain memories of men. If parol evidence of an interested party is to avail to establish a contract with a deceased person in contradiction of written agreements, and such parol undertaking is held to be established by statements of the declarations of the deceased touching his intentions, all persons having property and inclination to aid those bound to them by ties of blood need to be careful in their expressions of friendship and of their intentions with respect to the bestowal of bounty upon their death.

I am conscious that I have unduly extended this opinion; but, impressed with the serious consequences that must result if the judgment of the court shall be followed in liké actions, I deem it my duty to place on record this expression of dissent.