i. evidence : tenfnst™*' ment' Respecting the execution of the mortgage T. J. Trulock, one of the defendants, testifies as follows: “We went t0 JU(%e Smyth’s * * * * * to write up these papers. We were there three or four times before we got matters fixed up. When the .mortgage and notes were signed, myself, Judge Smyth and David Pierson were present. Don’t remember Taylor being there at that time. He was there one time. Judge Smyth was acting for one John Taylor, and had been through the entire litigation. When the mortgage was made, I told Smyth one important matter was omitted from the mortgage. He asked what. I said there is no provision in the mortgage by which I can be permitted to dispose of any of the land, and I was afraid Taylor would take advantage of it. This was before the mortgage was signed by me. I don’t recollect exactly what his remark was, but it was to the effect that we need not alter it, we will make it all right. I said we can fix that by your giving me another writing if you will, after this is over. He suggested again it will be all right. He then said the matter was under his control, and it would be fixed right away, he would attend to it in accordance with our agreement.” David Pierson, although present when the mortgage was executed, does not testify as to the circumstances attending its execution. The following interrogatories and answers appear in the testimony of Smyth: “ Was there anything said or any agreement made at any of these negotiations, by which the defendants, or either of them, were to have the privilege of selling these lands, and that Mr. Taylor was to release the lien of his mortgage on any part that they would sell? I know of no contract or agreement that was not reduced to writing - at the time. State whether there was any dissatisfaction expressed by either of these defendants to the contract as shown by this deed? None whatever that I know of or remember. State whether or not Mr. Trulock said anything to you about his reserving the right to sell this land under the mortgage, and that he objected to -signing the mortgage unless he had
From the testimony introduced on behalf of the defendants, it clearly appears that they fully understood what was embraced in the mortgage, and knew that it did not bind the mortgagee to release from the operation of the mortgage portions of the land of which they might effect sales. This case is not one where by mistake a stipulation is omitted from a written-contract, which the parties supposed it contained; nor is it one where by ignorance, or mistake of the law, the written contract fails to embody the terms of an oral agreement before entered into. It is simply a case where the parties execute a written contract with full knowledge of its terms and legal effect, and seek to vary its terms and change its effect by parol proof of a contemporaneous agreement. The proof offered cannot be brought within any of the recognized exceptions to the rule that parol contemporaneous evidence is not admissible to contradict or vary the terms of a valid written instrument. The admission of -the evidence offered in this case would violate every principle of the rule. In Taylor v. Galland, 3 G. Greene, 17, one of the authorities cited by the appellants, the following language is employed: “ The principle is well settled that where a written agreement has been executed between parties, and manifestly purports to be an entirety — presenting a perfect contract concerning the subject matter thereof, it is the best evidence of what was agreed on by the contracting parties. Such an agreement, when executed, cannot be modified, varied or contradicted by parol evidence of stipulations and agreements in regard to the
These views as to the competency of the testimony offered by the defendants render it unnecessary that we should consider its weight. We may say, however, that if its admissibility were conceded, it fails, in our opinion, to establish the fact alleged in that clear and satisfactory manner which cases of this lcind require.
Affirmed.