HAWES v. WEEDEN

Evidence, Extrinsic to vary writings. The rule that an instrument in writing cannot be varied by extrinsic evidence applies only to parties to the writing or their privies, and does not prevent an attaching officer from showing that a bill of sale of property attached by him absolute on its face was given only as security.

KNOWLTON, J.

The bill of sale from Mary A. Chase to the plaintiff, with the accompanying agreement permitting a redemption of the property described in it, and the formal delivery of the property, constitute either a pledge or a mortgage. Moors v. Reading, 167 Mass. 322. Whichever it was, the plaintiff has no rights under it that can avail him as against an attaching creditor of Mary A. Chase, for the instrument was not recorded, and possession of the property was not retained by him. Pub. Sts. c. 192, § 1. Potter v. Boston Locomotive Works, 12 Gray, 154. Moors v. Reading, ubi supra.

The only question much discussed at the argument is whether it was competent for the defendant to show the real nature of the transaction between the plaintiff and Chase by parol evidence. It is contended that one cannot, by such testimony, vary or contradict a written contract. This rule prevails in ordinary actions at common law between the parties to the contract, but even as between them there are exceptions to it. It is not applicable to certain suits in equity, nor to suits at law brought to enforce a trust. Campbell v. Dearborn, 109 Mass. 130. Reeve v. Dennett, 137 Mass. 815. Dixon v. National Ins. Co. 168 Mass. 48. Minchin v. Minchin, 157 Mass. 265. Raphael v. Mullen, 171 Mass. 111.

In the present case an equitable defense was pleaded. But without reference to that, the plaintiff's contention is sufficiently answered by the fact that the defendant was not a party to the contract. His title stands outside of it. The rule applies only to parties to the writing or their privies. Spooner v. Cummings, 151 Mass. 313. Kellogg v. Tompson, 142 Mass. 76. Edgerly v. Emerson, 23 N.H. 555. Fonda v. Burton, 68 Vt. 355. Brown v. Thurber, 77 N.Y. 613. Highstone v. Burdette, 61 Mich. 54. The defendant, therefore, had a right to show by oral testimony that the instrument, absolute in its terms, was in fact merely given for security.

Judgment affirmed.