Burroughs v. Pate

ANDEKSON, J. Any parol reservations to property conveyed, whether prior to or contemporaneous with the execution of an absolute conveyance, are merged in the deed, and it takes effect as an operative conveyance, according to its terms, from the time of delivery. Its legal effect cannot be varied or qualified, by a reservation in parol, so as to make the estate conveyed commence in futuro, or so as to limit or restrict the use or enjoyment of the property conveyed. Upon the execution of the deed in question, ■ the plaintiff was entitled to the immediate possession of the land, without condition or reservation.—Wright v. Graves, 80 Ala. 416; Williams v. Higgins, 69 Ala. 517. That the consideration of a deed can be explained by parol there can be no doubt, subject, of course, to certain limitations and restrictions; but the agreement, set up in the special pleas, and the proof offered in support of same, went beyond the explanation of the consideration and tended to limit or restrict the unqualified use and enjoyment of the land conveyed. It qualified the plaintiff’s use and enjoyment of the land by subordinating his right to the expiration of the ex [228] isting lease. It matters not that the plaintiff was to get the rent for the years subsequent to the transaction, as he was, by the existence of the lease, deprived of such a right to the land as was conveyed to him by the deed. If a parol agreement could restrict the grantee’s use and enjoyment of the land, pending a lease for 4 or 5 years, by analogy it could be done for 99 years, at a time when leases for so long a time were authorized. It matters not how short a time the period of enjoyment may be postponed, or how little the estate conveyed may be reduced. If the parol evidence does this, it is not admissible, and this view is not only in harmony with early legal principles, but is fully sustained by the former decisions of this court. In the case of Melton v. Watkins, 24 Ala. 433, 60 Am. Dec. 481, a deed, absolute in terms, was executed, and the grantor attempted to show, by parol, a contemporaneous agreement, whereby he was to retain the use of the land until the expiration of the ensuing farming season. The court held that, the reservation not Deing in the deed, or otherwise in writing, it varied, by parol, the legal effect of the deed, and took from the grantee an interest which the deed conveyed to him. We find a few authorities which would, perhaps, justify the admissibility of the parol evidence, offered in the case at bar, not based upon the idea that the legal effect or character of the estate would be changed, but upon the theory that the qualification or restriction of the use does not necessarily change or qualify the title. Notable among these will be found the case of Hall v. Solomon, 61 Conn. 476, 23 Atl. 876, 29 Am. St. Rep. 218, and authorities there cited. We indorse, however, what is said by the learned writer of the note on page 201 of 5 Am, St. Rep., and which is, in part, .as follows: “While these cases do not profess to de [229] part from the general rule, which rejects parol evidence when offered to vary or enlarge a written contract, they seem to us to proceed to evade that rule, without suggesting any general test by which to determine when such evasion is proper. In fact, while professing to respect the- rule, they refuse to apply it; and, if they be judicially sound, we know not when the rule may not be held inapplicable, or whether the existence of the rule ought to be affirmed or denied with the more confidence. They furnish additional proof that hard cases are the quicksands of the law; in which quicksands the law- is either hidden from sight or smirched beyond recognition.” Our court has not only respected the rule, but has generally applied it when the occasion arose, regardless of the rigor or hardship in any given case, and we quote from the Melton Case, supra: “As Ave have said on a former occasion, there is no hardship in requiring parties to make their writing, which they adopt as the evidence of their agreement, speak truly its terms. Were we to depart from this evidence, and to go out in search of parol negotiations, either at or before the time the parties reduced their contract to AA7riting, we should open a wide dour for fraud and perjury, and Avould introduce the greatest uncertainty, in many cases, as to what the contract of the parties really was. The policy of the May is clearly opposed to relaxing the stringency of the rule.” See Seay v. Marks, 23 Ala. 532. Our attention is called to the case of Steed v. Hinson, 76 Ala. 298, as an authority in support of the ruling of the trial court, and which doubtless induced same, and which, Ave confess, is calculated to mislead. It will be observed, however, that the opinion, in said case, guards against holding that the rent could be reserved by parol, when the lessor absolutely conveys [230] the reversion, and seems to proceed upon the idea that the rent was a mere incident to the reversion, which * I could be severed, and which was severed, before the delivery of the deed. In other words, the estate conveyed was not limited or restricted, but the grantor got all he bought; the rent for the year of the sale being a mere incident and was severed before the deed was delivered and which did not restrict or limit the title or estate conveyed. Whether this is a real distinction or not we need not determine, for, if it is not, we are not disposed to extend the exception any further than was done in the Steed Case, supra, and which said case can be differentiated from the case at bar. The agreement set up in the case at bar went beyond the mere serverance of the rent for the year of the transaction and limited and restricted the absolute use and enjoyment of the estate pending the existing lease for several years, and notwithstanding the deed conveyed an absolute estate, with the immediate right to the unrestricted use and enjoyment of the premises. The trial court erred in not sustaining the plaintiff’s demurrers to pleas 4 and 6, and the judgment of the county court is reversed, and the cause is remanded. Reversed and remanded. Dowdell, C. J., and Evans and Saybe, JJ., concur,