The dispute was not as to the defendant's right to occupy the house after his deed, but as to the terms upon which he occupied it; in other words, whether the rent was included in and formed part of the consideration of the conveyance. The deed is silent on both points. The defendant, in fact, occupied, but whether he paid the rent in advance, or whether it was still due and unpaid, was, in effect, the question at the trial.
What the deed showed was, that the title, carrying with it, of course, the right of immediate possession, passed to the plaintiff June 9, 1870. By evidence outside the deed it was shown that the defendant occupied the premises until August 25, 1870. What has the deed to do with the terms of that occupation, any more than if it had occurred ten years after its execution?
Suppose the defendant's claim had been that in some other trade between him and the plaintiff a compensation for this rent was reckoned and allowed: would there be any pretence that such fact could not be shown by parol, as an answer to the plaintiff's action to recover the rent over again? What difference does it make that compensation for the occupation was reckoned and allowed by agreement in the trade respecting the same premises, and as part of *Page 422 the consideration for the deed? I think none.
The transaction was outside and independent of the deed, though incidentally connected with it; and the evidence no more tended to contradict the terms of the deed, than would evidence that the defendant at the time of the trade paid the plaintiff fifty dollars in cash for two and one half months' rent of the house. The instructions to the jury were sufficiently favorable to the plaintiff, and were clearly right.
The requests for instructions were all based on the assumption that parol evidence of an actual contract respecting the occupation was inadmissible, and were therefore properly refused. There should be judgment on the verdict.
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