92 Ky. 211 | Ky. Ct. App. | 1891
DELIVERED THE OPINION OE THE COURT.
March 22, 1887, appellee, L. 0. Bourne, sold and conveyed to appellant, J. M. Bourne, a tract of laud, for description of which a Commissioner’s deed to J. M. Bourne and deed from J. M. to L. 0. Bourne were referred to, the. consideration as recited being the amount due on the land.
It appears that appellee had previously leased designated parts of the land for the year 1887 to different tenants, each of whom had agreed to pay him as rent stipulated portion of crops raised by him, except one who was to pay a sum of money as rent of the dwelling house. And he having, after the crops were raised, taken pos
In defense of the action it is pleaded that at the time of the sale and conveyance of the land it was distinctly agreed between the parties, and was part of the contract, that appellee was to collect and retain all the rent payable in crops under the previous agreements between him and the different' tenants, appellant being entitled to rent of the dwelling house only, which he collected, but that said agreement was by mistake omitted from the deed.
Although the evidence does not support the allegation of mistake, which was the only reason for transferring the action to equity, yet as no motion was made by appellant for trial by jury of the issue whether such agreement was made by the parties, it can not now be made an available objection that the chancellor heard and decided it. Nor do we think his finding was so decidedly against the weight of evidence, if at all, as to authorize reversal' of the judgment on that account.
The single question then is, whether the agreement relied on by appellee is such as comes within the recognized rule making parol evidence inadmissible to contradict or vary the terms of a valid written instrument. In determining that question the agreement in question must be regarded not independent, but, according to appellee’s own allegation, as part of the contract of sale and conveyance.
The extent and condition upon which that rule may, without qualification, be applied, are laid down by this court in Gully v. Grubbs, 1 J. J. Mar., 387, thus:
*214 ■“ Wherever a right is vested or created or extinguished by contract or otherwise, and writing is employed for that purpose, parol testimony is inadmissible to alter or contradict the legal and common-sense construction of the instrument. But any writing which neither by contract, operation of law, nor otherwise, vests or passes or extinguishes any right, but is only used as evidence of a fact and not as evidence of a contract or right, may be susceptible of explanation by extrinsic circumstances or facts. A party is estopped by his deed. He is not pei’mitted to contradict it; so far as the deed is intended to pass a right, or to be the exclusive evidence of a contract it concludes the parties to it. But the principle goes no further. A deed is not conclusive evidence of everything which it may contain. It is not the only evidence of the date of its execution; nor is its omission of a consideration conclusive evidence that none passed; nor is its acknowledgment of a particular consideration an objection to other proof of other and consistent consideration. And by analogy the acknowledgment in a deed that the consideration had been received is not conclusive of the fact. This is but a fact, which may be explained or contradicted. It does not necessarily and undeniably prove the fact. It creates no right. It extinguishes none.”
According to the general principle there stated it had been previously held in Trumbo v. Curtright, 1 A. K. M., 482, that an additional consideration not incompatible with that named in a deed may be proved by parol testimony. The same doctrine was approved in Gordon v. Gordon, 1 Met., 285, aiid may be considered as settled by this court.
Treating the agreement as part of the contract and the ■ proof of it as establishing a fact, and not as defeating or impairing a right secured by the deed, it is, consistent with the principle recognized by this court, not only -enforcible but susceptible of being proved by parol evidence, for there is no practicable difference between a
Judgment affirmed.