Cyrus Washburn, Executor of Apollos Clapp, v. Thomas W. Titus, 9 Vt. 211

The other facts in the case sufficiently appear from the opinion of the Court, delivered by Williams, Chan.

The bill states that the testator, Clapp, was afflicted with the delirium tremens, and became debilitated so as to be unable to carry on and manage his farm ; and that, on the 1st December, 1833, he leased it to the defendant, to receive his support by way of rent; that on the 20thDecember, 1834, the defendant persuaded and induced the orator to sell and convey the farm to him for the sum of $1700, on credit, and, that defendant agreed to pay said sum of $1700 ; that on the 28th October, 1835, the testator died, and the orator was appointed executor; and praying that defendant may be decreed to pay the sum of $1700, deducting what he has expended in the support of the testator.

The answer sets forth the contract, by which it appears that, at the time of executing the deed, the defendant, Titus, executed a bond and mortgage, which are stated in the answer. The testimony does not warrant the allegation, that any means were made use of to persuade or induce the testator to make the contract, or execute the deed; nor is there any evidence that the mind of the testator was weak, or that his faculties were impaired by age or disease.

On the contrary, he appears to have been a man about middle age, peaceable in his behavior, and, for aught that appears, as capable as he ever was, of disposing of his estate, making any contracts or managing his affairs; but that he was addicted to intemperance. Nothing appears, but that he fully understood the nature, extent and consequences of the the contract he did make with the defendant. He frequently expressed himself satisfied with the manner, in which he was treated by the defendant.

There is nothing in the contract itself, which a man, in the exercise of his faculties, might not make, or, in other words, an intelligent man might make such a contract as the defendant contends was made by the testator, as well as such an one as the orator contends for. If the contract was for h¡s support, it would have been singular if he had inserted a provision as to his funeral expenses,- the omission of which kas keen argued as evidence of his incapacity.

Surely, no man, who was invest'irig a sum °f money to be expended for his support and maintainance, and which he contemplated might be exhausted, in that way, before his death, would insert'a provision, that a certain part of that sum should be reserved for the purpose of his burial; the testator, much more rationally, in his will, provided for the paying of those expenses, from his personal property, out of the legacies therein given.

We should not be warranted, therefore, in this case, from the testimony, in rescinding the contract, upon any of the grounds mentioned, if the prayer of the bill had been framed for that purpose. We must, then, turn our attention to the contract, as contained »n the bond and mortgage, learn what it is, and whether the orator is entitled to the relief prayed for, or to any other relief, under the general prayer. In the first place, it may be remarked, that the bill sets forth no trust, either express or resulting.

In framing the bill, the orator could not have had in view a trust arising by operation of law, on the bond and mortgage, as neither oí them are noticed in the bill. Possibly, however, if the papers, produced, established a trust, we might so consider it, and decree accordingly. The construction, to be placed on the contract, is to be learned from the writings executed,and not from any parol testimony. The parol testimony, however, does not disclose any thing different from what the writings themselves purport to be.

As the orator has not insisted on any trust in the bill, neither can we discover, from the testimony, any trust, which calls for the aid of a court of chancery to enforce, or carry it into effect. The testator executed a deed. The defendant executed a bond and a mortgage, to secure the performance of the conditions of the bond. The bond and mortgage were the consideration of the deed. The land was conveyed by the deed, and the testator took such a bond and mortgage as he thought proper, and with such conditions as he thought would secure the performance of the contract made between them.

Whether, therefore, the defendant was to pay $1700, for the farm, at all events, or whether the condition was performed, when he supported the testator, in the manner therein prescribed, until his death, or whether his obligation is to pay any thing further, are wholly questionsj’of law, arising upon the construction to be placed|on the bond and mortgage. Keyes fy Bradley, Solicitors for orators. J. Phelps f Daniel Kellogg, Solicitors for defendants. In this view of the case, we can see no reason for the interposition of the powers of a court of chancery.

The remedy of the orator, if he has any, is upon the bond and mortgage. We cannot vary the terms of the condition, or make any new one. If the construction is as contended by the orator, he may sue at law, either upon the bond, or by action of ejectment to recover the premises mortgaged, or he may come into chancery to foreclose his mortgage. At any rate, he cannot call upon the court of chancery, in this suit, to put a construction upon that bond,'and decree a payment of the same.

On the other hand, if the construction is as contended for by the defendant, it will furnish a good defence to any action, which the orator may institute, either upon the bond or mortgage. As we consider the orator not entitled to enforce this contract or bond in a court of chancery, the result is, that the bill must be dismissed with cost, but without prejudice.