51 So. 978 | Ala. | 1909
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
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
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
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.