Overseers of the Poor of New Berlin v. Overseers of the Poor of Norwich

Majority

p. 231

The Overseers of the Poor of New Berlin against The Overseers of the Poor of Norwich.

NEWYORK,

May, 1813.

Headnote

a<FVevseJrs ot‘ B- asa'iisf tfi6 overseers of N., from an ”^®ai "of T" Pau|,ei'>t0 l.1lp ^esstons, it was pioved, per had pur-" chased a lot of land in B., alleged to he the place of his last legal settlement, for 2SO dollars, the consideration expressed in the deed; and that he mortgaged it back to the grantor for 200 dollars. It was held that the overseers of N. might show, by parol, that the consideration had not been paid by the pauper for the land.

Though parties and privies are estopped from contradicting a written instrument by parol p- oof, the rule does not apply to strangers who have an interest in knowing the real truth of the case.

IN ERROR, from the general sessions of the peace of Chenango county. Two justices of the peace of Norwich made an ° ^ order for the removal of William Tyler, and his wife, two poor persons, from Norwich to New Berlin, as the place of their last legal settlement. The overseers of the poor of New Berlin ap- ° * Jr pealed from this order to the general sessions of the peace, held in January, 1812. The overseers of Norwich proved by the pauper,

p. 232

that 8 years before be came to reside in New Berlin with Ms famj]y} he paid taxes; that while he resided there, he purchased two lots of land, one lot of B. Stanton, and one of a Mr. Ander-SQn^ an(j pay Anderson a waggon worth 75 dollars, and a horse fo Stanton worth 80 dollars; that he was to give Stanton 250 dollars for the lot, house and shop, tools, &c. The tools were worth about 50 dollars; and that he mortgaged the land to Stanton for 200 dollar's. The deed and mortgage were registered, and It appeared that the consideration expressed in the deed was 250 dollars.

The appellants offered to prove, by parol evidence, that the 50 dollars was not paid by Tyler, as part of the consideration of the land, but for the tools, &c. and that the land was mortgaged to Stanton for the whole consideration money, being 200 dollars. This evidence was objected to, and overruled by the court. The appellants then offered to prove by the witnesses to the deed, that no consideration had been paid by Tyler to Stanton, for the land; but this evidence was also objected to, and overruled by the court.

The order of removal was affirmed by the sessions, with costs. The cause was submitted to this court without argument.

The purchase of an estate in a town will not gain a settlement for any longer time than the purchaser inhabits such estate, unless the consideration for the purchase amounts to 75 dollars, bona fide paid. (Sess. 24. c. 184. s. 4.) The overseers of the poor of the town of New Berlin offered to prove that though the paupér had purchased a lot in that town, for the consideration of 250 dollars, and had mortgaged the lot back to secure the payment of 200 dollars, yet that, in fact, he had not paid any part of the consideration, and the evidence was rejected. The overseers of Aero Berlin were clearly entitled to show this fact, and were not estopped from showing it by the deed or mortgage, to which they were not parties. Such a conclusion would be unjust, by enabling a person at any time to procure a settlement, by a purchase without payment, and so to defeat the provision in the act. It is a general rule that parlies and privies are estopped from contradicting a written agreement by parol proof, but the rule does not extend to strangers, who have an interest in investigating and knowing the real truth of the case.

The judgment of the court below must be reversed, and the order of the two justices quashed.

Judgment of reversal»