| Ark. | Mar 31, 1919
(after stating the facts). We think that the court erred in dismissing the complaint of the plaintiff so far as the defendants, E. T. and S. M. Hall, are concerned. It is settled in this State that growing trees or standing timber are part of the realty, and that consequently a contract for the sale thereof is within the statute of frauds and must be evidenced by. a deed or other instrument in writing. Graysonia-Nashville Lumber Co. v. Saline Development Co., 118 Ark. 192" date_filed="1915-04-12" court="Ark." case_name="Graysonia-Nashville Lumber Co. v. Saline Development Co.">118 Ark. 192; King-Ryder Lumber Co. v. Scott, 73 Ark. 329" date_filed="1904-12-17" court="Ark." case_name="King-Ryder Lumber Co. v. Scott">73 Ark. 329, and Kendall v. J. I. Porter, 69 Ark. 442" date_filed="1901-06-29" court="Ark." case_name="Kendall v. J. I. Porter Lumber Co.">69 Ark. 442.
It has been frequently said that the general rule that parol evidence cannot be received to modify or vary a written contract arises from the presumption that the parties place their agreement in writing to avoid the consequences flowing from defects of man’s memory and the prejudice which might result from the testimony of interested witnesses.
It may be said in this connection that contracts are frequently made which are independent of the written contract, as was the case in Kimbro v. Wells, 112 Ark. 126" date_filed="1914-03-16" court="Ark." case_name="Kimbro v. Wells">112 Ark. 126. They may be established by parol evidence because being collateral to or independent of the written contract, it was not the intention of the parties to include them in the writing. The value of a written contract largely depends upon the credit to be given it, so that it cannot be modified or varied by proof of facts leading up to the contract itself or occurring at the time of its execution.
In the application of these principles to the facts of the present record, it may be said that all the articles of agreement between Dr. Hall and Broderick for' the sale of the land were merged in and extinguished by the subsequent deed thereto between the parties. The deed in the absence of fraud or mistake is the final contract between the parties and cannot be varied or modified by parol evidence. In the application of this rule, this court has held that an oral argreement between the vendor and purchaser of land made at the time of the execution of the deed to the effect that crops growing on the land shall be excepted from the conveyance and remain the property of the vendor is of no effect and may not be proved,. by the vendor. Gibbons v. Dillingham, et al., 10 Ark. 9, and Gailey v. Ricketts, 123 Ark. 18" date_filed="1916-03-06" court="Ark." case_name="Gailey v. Ricketts">123 Ark. 18. So, too, it was held in Hardage v. Durrett, 110 Ark. 63" date_filed="1913-11-03" court="Ark." case_name="Hardage v. Durrett">110 Ark. 63, that parol evidence is not admissible to show that a covenant against encumbrances was not intended by the parties to apply to a particular encumbrance, in the absence of a question of fraud or mistake, and when no exception to that effect is contained in the deed itself. Therefore, it was incompetent as far as the defendants, E. T. and S. M. Hall, are concerned to prove by parol evidence that the standing timber had been excepted from the sale at the time it was executed.
Again it is insisted that this exception was left out of the deed by the fraud of the plaintiff. It is true that Hall and his wife both testified that this was left out of the deed át the suggestion of Broderick,, but Broderick denies it in positive terms and he is corroborated by another witness who purchased some of the land embraced in the timber contract and who stated that the timber was not excepted when he purchased the land. "Without entering into a detailed discussion of the evidence on this point, we are of the opinion that the fraud was not established by that clear, unequivocal and decisive evidence held necessary to reform a written instrument upon the ground of fraud. Welch v. Welch, 132 Ark. 227" date_filed="1918-01-14" court="Ark." case_name="Welch v. Welch">132 Ark. 227.
The court, however, was right in dismissing the complaint so far as the McRae Box Company and Hale were concerned. Prior to the execution of the deed to the land from Hall to Broderick, Hall, by a written contract, sold and conveyed the timber to a third person. According to the, testimony introduced for the- defendants, McRae Box Company and Hale, Broderick was informed by his vendor before the execution of the deed by the latter to the former that the timber had been sold. This was actual notice to Broderick and put him on inquiry as to the rights, of the parties who had purchased the timber. Kendal v. J. I. Porter Lumber Co., 69 Ark. 442" date_filed="1901-06-29" court="Ark." case_name="Kendall v. J. I. Porter Lumber Co.">69 Ark. 442; Collins v. Bluff City Lumber Co., 86 Ark. 202" date_filed="1908-05-11" court="Ark." case_name="Collins v. Bluff City Lumber Co.">86 Ark. 202, and Weaver-Dowdy Co. v. Martin, 94 Ark. 503" date_filed="1910-04-18" court="Ark." case_name="Weaver-Dowdy Co. v. Martin">94 Ark. 503.
It is true that Broderick denied that Hall told him that he had sold the timber at the time he made the contract with him for the sale of the land; bnt the testimony as to notice need only be established by a preponderance of the evidence. We are of the opinion that a preponderance of the evidence establishes the fact that Broderick had actual notice that the timber had been sold at the time he made the contract with Hall for the purchase of the land and the deed therefor was executed to him.
It follows that the chancellor was right in dismissing the complaint in so fardas the defendants, McBae Box Company and Hale were concerned and the decree as to them will be affirmed. '
For the reasons given above, the court erred in dismissing the complaint as to the defendants, E. T. and S. M. Hall and for that error the decree will be reversed- and the cause remanded for further proceedings in ac-. cordance with the principles of law laid down in.this opinion.