Aрpellee was the plaintiff below in this action to recover rents on lands alleged to be due for the year 1918 undеr a written contract. The case was tried before the court on an agreed statement of facts. The farm whiсh constituted the subject-matter of the lease contract was owned by appellee' and-others as tenants in common. Appellee owned an undivided 1-6 thereof; D. H. Wilhite and W. O. Anthony, owned an undivided 1/2 thereof, and two other persоns, whose names are not disclosed in this record, owned the other 2/6 interest. Appellant leased the land from'the оwners for a period of 5 years ending December 31, 1919, under written contract stipulating that the rents should be payable аnnually on November 15, and the amount sued for by appellee is the amount stipulated to be paid her in the contract for her interest. This suit is, as before stated, one to recover the rent for the year 1918. In the spring of that year, aрpellant made an absolute assignment of the lease to Wilhite and Anthony, they paying to appellant the sum of $500 as consideration for the assignment and as purchase price for a lot of corn, and they “ succeeded to the rights and assumed the liabilities of the Barfield Mercantile Company under its lease contract covering said land.’? On Oсtober 12,1918, appellee sold, and conveyed by warranty deed without reservation, her said interest in the tract of lаnd to S. E. Simonson, and on November 12, 1918, Simonson conveyed that interest dv warranty deed without reservation to Wilhite and Anthony. These deeds were placed of record on December 8, 1918, and by the purchase Wilhite and Anthony became the оwners of the whole of the land except an undivided 2/6 owned by persons not involved in this litigation.
Appellee was allowed to prove, over the objections of appellant, that in the sale by appellee of her interest in the land to Simonson there was an oral agreement that the rents for the year 1918. should be reserved to appеllee.
The trial court made a finding of fact to the effect that the sum of $500 paid by Wilhite and Anthony to appellant fоr the lease included the rents due appellee for that year, and that in this manner “Wilhite and Anthony paid the defendant the sum of $146 for the use and, benefit of plaintiff, independent of the purchase of the land.” Counsel for appellee defend the judgment on this finding of fact, and contend that appellee is entitled to recover on the ground that thе rent money was paid over to appellant for the benefit of appellee and acceptеd by appellant for her benefit. This finding by the court, however, is not only without evidence to support it, but it is contrary to the аffirmative evidence on this subject. The only testimony on that subject is that of Anthony, incorporated in the agreed statement of facts, wherein he testified that Wilhite and Anthony “paid the Barfield Mercantile Company $500 for its contract on sаid land, and for some corn,” and that “by said transaction the said Wilhite and Anthony succeeded to the rights and assumed the liabilitiеs of the Barfield Mercantile Company under its lease contract covering said lands.” Nor can we, for the purрose-of sustaining a recovery in favor of appellee against the Barfield Mercantile Company, treat the alleged oral agreement between appellee and Simonson as an undertaking on the part of the latter to pay the rent for that year as a part of the consideration for' the deed. It may be concеded that oral proof of such an agreement would not offend against any of the established rules of evidencе, but that would not help appellee’s case, inasmuch as Simonson is not sued and appellant can not be hеld responsible for Simonson’s undertaking to pay the rent as part of the consideration for the deed. Appellee’s right to recover must be tested solely upon the question of her right to prove an oral reservation of the rеnts in the sale of the land to Simonson.
It is well settled that a deed conveying the title to land in fee simple carries with it the right to collect the rents, and, “unless the deed reserves the right in the grantor to collect and use the rents, these pass аs a necessary incident with the land to the grantee.” Gibbons v. Dillingham,
“The rulе that parol evidence,” this court has held, “is inadmissible to contradict or vary the terms of a written instrument, is necessarily confined in its application to the parties to it or those claiming some right or interest under it.” Talbot v. Wilkins,
The judgment is therefore reversed, and the cause is remanded for a new trial.