Appellant brought his action in the commissioner’s court against appellee, Southerland, to recover $125 for rent of land. In that court R. Moffett & Sons and J. H. Randall, guardian of Elizabeth and Robert Randall,
He assigns 11 errors, the first of which is the overruling ■of his demurrer to defendants’ first amended answer, which set up as cause of demurrer that this paragraph was only general ■denials and conclusions of law, and is contradicted by subsequent paragraphs thereof; that paragraphs 2, 3, 4, and 6 set up an alleged oral agreement tending to vary the terms of a written ■contract, and set up an' alleged parol reservation of rents, and that paragraph fails to allege any defense. Second: The overruling of his special demurrer to paragraphs 2, 3, and 4, because ■they do not state facts sufficient to constitute a defense to plaintiff’s cause of action. Third and fourth; Errors in permitting witnesses Moffett and Parker to testify, over plaintiff’s ■objection, to a supposed oral contract different from the written contract between the parties, and tending to prove a parol reservation of rents to accrue upon the land conveyed. Fifth ■error: Refusal of court to peremptorily instruct the-jury, upon plaintiff’s motion, made at the close of the evidence, to return a verdict for plaintiff. Sixth error: Refusal of court to give the following instruction asked by plaintiff: “You are instructed by the court that if you find from the evidence that J. H. Randall had rented the premises to R. Moffett & Sons for the year 1903, .and afterward, on or about the 8th day of April, 1903, the said J. H. Randall sold the premises in controversy to the plaintiff, and gave an absolute deed conveying the same to plaintiff, the rents passed with the premises to plaintiff, unless they were reserved in the deed.” Seventh error is the refusal of the court to give the following instruction asked by plaintiff: “You are instructed that a reservation of rents cannot be established by parol; the consideration in the deed transferring said premises
Southerland answered, admitting that he owed the amount of rent claimed and wa"s ready to pay the same towhomsoever the court should direct. The answer of Moffett & Sons is to the same effect. The answer of Randall, guardian, upon which the issues arise, is in substance that in April, 1903, he sold and conveyed to the plaintiff all the interest of his wards, being the-improvements and right of occupation in and to the premises out of which the rent in controversy arises, but that plaintiff expressly released 1ns right and -claim to all the rents that should accrue thereon. The evidence offered develops that this supposed agreement of reservation of accruing rents was oral, and prior to the execution of the deed of conveyance. It further appears from the evidence that the wards of the defendant Randall were Choctaw Indians, entitled to allotments out of the public domain of the Choctaw Nation, and the land in question embraced more than they were entitled to hold, and under the-act of Congress or treaty with the Choctaws they had the right to sell this surplus land, with the improvements thereon, to-any other Choctaw or Choctaws who, under the treaty, would have the right to allot the same. Thereupon, on April 14, 1903, defendant Randall, guardian, etc., executed to appellant and his wife, A’ernie, who were Choctaw" Indians and entitled to an allotment, each, the following instrument in writing, which was introduced in evidence by appellant.
“Indian Territory, Choctaw Nation.
*670 “Know all- men by these presents, that I, J. H. Randall, ■guardian of the persons and estates of Elizabeth L. and Robert J. Randall, minors (who are citizens by blood of the Choctaw Nation), for and in consideration of the sum of one thousand (11,000.00) dollars, paid and to be paid to me by D. A. Taylor ■and'wife, Vernie Taylor, as follows: Three promissory notes ■of even date herewith, payable to the order of J. H. Randall, guardian, due and payable October 15, 1904, October 15, 1905, .and October 15, 1906, respective^ with interest at-10 per •cent, per annum from maturity and attorney's fees; the first two notes being for three hundred and fifty ($350.00) dollars •each, and the third for three hundred ($300.00) dollars, secured ■by lien on premises conveyed and all crops till paid — have bargained, sold, released, and delivered, and do by these presents bargain, sell, release, deliver, and forever quitclaim unto the said D. A. and Vernie Taylor, and unto their heirs, executors, administrators, and assigns, the following described property, claims, and improvements, situated in the said Choctaw Nation, Indian Territory, and described as follows, to wit: The old Lake West farm and claim on Red river, in Jackson county, being the entire claim, as much as the said Taylor and wife can legally hold for themselves or others (except the store house building and gin machinery), together with all the privileges thereunto belonging, as fully and entirely under the laws of the United States of America and under the laws and by the customs and usages of the said Choctaw Nation, 1 may convey lawfully and quitclaim unto the said D. A. Taylor and Vernie Taylor. To have and to hold the said above-described property unto the said D. A. Taylor and Vernie Taylor, their heirs, •executors, administrators, and assigns, forever, subject, always to the laws and customs of the said Choctaw Nation; and here-' by warrant title to said property against all persons claiming the same, or 'any part thereof, except the Choctaw Nation.
“In witness whereof, I have hereunto set my hand on this the 8th day of April, A. D. 1903.
J. H. Randall,
*671 ■“Guardian of the Persons and Estates of Elizabeth L. and Robert J. Randall, Minors.
“Witness:
“United States of America, Central District, Indian Territory.
“April 14, 1903.
“Be it remembered that on this day personally appeared before me, a notary public within and for the Central district of the Indian Territory, at my office in Atoka, in said district and territory, J. H. Randall, personally well known to me to be the one who. signed and executed the above and foregoing conveyance 'as guardian of the persons and estates of Elizabeth L. and Robert J. Randall, minors, as grantor therein, and acknowledged to me that he had executed the same, for the purposes and considerations and in the capacity of guardian therein set forth and mentioned, as his free act and voluntary deed; and I do so certify.
“Wm. W. Coleman, Notary Public.”
A witness on behalf of defendant Randall testified as follows, over the objection of appellant: “Q. If Mr. Taylor made a statement as to what you should do with the rents for 1903, state the’facts. A. When the trade was made, and he called me up and told me about the trade— (Mr. Ferguson, for plaintiff, objects). Q. Did Taylor ever have those notes any more after they were turned over to you? A. No, sir. Q. These notes, then, were turned over to you as, virtually, Taylor’s agent? He turned them over to you to deliver to Randall? A. Yes, sir; provided he executed the deed. Q. When Randall executed the deed, did it come to you? A. Yes, sir; he came down to my house. The Court: I believe I will just let him state all about that contract, because it does seem to me that the truth is the thing that we want. Now, then, without any further argument, I am going to hold that this man can, as he was the man who held the notes, that he may state if Taylor told him about the rents — where they were
Both sides have furnished lengthy printed briefs. The questions presented by this record are elementary: First, that parol evidence is not admissible to change or vary a written agreement, save certain exceptions, none of which apply to this case. The reason for the rule is so manifest that argument would be surplusage. The parties make a solemn agreement in writing, acknowledged before an officer authorized by law to take acknowledgments of deeds and conveyances. There is nothing on the face of the contract that requires extrinsic evidence to explain. The court in this jurisdiction, from common knowledge, interprets the words, “as much as the said Taylor and wife can legally hold for themselves or others,” to
The court was clearly in error in overruling the objection to the testimony to show that the terms of this deed were different from those expressed in it. The court was in error in instructing the jury to consider any testimony that proved or tended to prove any statements or admissions of either party as to the terms or conditions of the contract. It is to be conclusively presumed that the writing is the only evidence of the contract. The manifest purpose of the writing is to preserve intact the exact purpose and wishes of the respective parties. Only a clear case of fraud, accident, or mistake in making the contract will admit parol proof to vary or change it.
The appellant complains of the court's refusal to grant his motion for a peremptory instruction to the jury to find its verdict in favor of him. The appellee meets it by saying that the motion was not sufficient in not stating the ground. It must be conceded that the better practice is to set forth in the motion the specific ground, that the court might have its atten-t-ion called to the exact point. However, the court could have
The appellee, in his brief, gives considerable space to the discussion of the question that appellant cannot recover because of not sufficient parties plaintiff, and because of a variance with the proof. It. is too late to raise those points for the first time in this court, for the reason that, if made below, the pleadings could have been amended, and the error corrected, under the provisions of the statute.
And the further point made by appellee, that the deed did not operate to transfer to appellant the rent thereafter accruing, is not well taken. The rule is that a conveyance of the fee by the landlord, by operation of law, transfers all the rent thereafter accruing to the grantee. 2 Taylor’s L. & T. (9th Ed.) par. 439; Gibbons vs Dillingham, 10 Ark. 9, 50 Am. Dec. 233; Winn vs Murehead, 52 Iowa, 64, 2 N. W. 949. And this was the view taken by the trial court, for it instructed the jury to find for the plaintiff if it found the rent had not been reserved by express oral contract.
Reversed and remanded.