Martin v. Partee

Smith, C. J., delivered the opinion of the court. ' This is an appeal from a decree awarding the appellee, who was complainant in the court below, damages because of the breach by the appellant of a covenant of [488] warranty contained in a deed executed by the appellant to the appellee. The appellant 'lives in the State of Tennessee, and the suit was begun by an attachment under the provisions of section 537, Code of 1906 (Hemingway’s Code, section 294). The appellant sold certain land to the appellee by a warranty deed executed on the 4th day of September, 1917; the consideration therein set forth being five thousand dollar in cash, the assumption by the grantee of an indebtedness amounting to twelve thousand dollars due by the grantor to a third person and secured by a deed of trust on the land, and the execution by the grantee to the grantor of several promissory notes aggregating the sum of fifteen thousand dollars. The appellant failed to pay the taxes due on the land for the year 1917; consequently the appellee was compelled to do so himself, and, upon the appellant declining to reimburse him therefor, he instituted this suit. The appellant’s defense is, and he sought, but was not permitted, to introduce parol evidence to prove, that at the time of the execution of the deed the appellee agreed as a part of the consideration therefor to assume the payment of the taxes on the land for the year 1917. The warranty contained in the deed, being general, covers all incumbrances on the land, including the taxes for the current year. Section 2817, Code of 1906 (Hemingway’s Code, section 2318); Swinney v. Cockrell, 86 Miss. 318, 38 So. 353. And to admit the evidence sought to be introduced by the appellant would not only import a new element into the contract, to wit, a promise by him to pay the taxes on the land for the year 1917, but would also contradict the express language of the deed itself, by excluding the taxes for that year from the covenant against incumbrances therein contained; consequently no error was committed by the court below in excluding it, for, while a consideration recited in a written instrument merely as a fact may be varied [489] by parol evidence, the terms of the instrument itself cannot he. Baum v. Lynn, 72 Miss. 932, 18 So. 428, 30 L. R. A. 441; Thompson vs Bryant, 75 Miss. 12, 21 So. 655; English v. Railroad, 100 Miss. 575, 56 So. 665. Where a deed contains a covenant" against incumbrances, the authorities are conflicting as to whether or not the assumption by the grantee of the incumbrance may he shown by parol evidence. -3 Ency. Evidence, 386; 2 Devlin on Deeds (3 Ed.), section 914. But the rule in this state is that such evidence is inadmissible. Maxwell v. Chamberlin, 23 So. 266. Affirmed.