Opinion
No. 32988.
January 17, 1938. Suggestion of Error overruled January 31, 1938.
1. EVIDENCE.
The rule excluding parol evidence to vary or contradict a written instrument extends not only to parties to instrument, but also to their privies.
"Privies are those who stand in mutual or successive relationship to the same rights of property. "Privity" implies succession. He who is in "privity" stands in the shoes or sits in the seat of the owner from whom he derives his title, and thus takes it charged with the burden attending it.
2. EVIDENCE.
In trustee's action for conversion of cotton sold to defendants by grower after execution of trust deed to bank on printed form containing provision that property covered included crops to be grown, defendants' evidence that when trust deed was executed bank agreed that it should not cover crops to be raised and that grower did not intend to include crops was inadmissible, since rule excluding parol evidence to vary or contradict written instrument extends not only to parties to instrument, but also to their privies.
APPEAL from the circuit court of Grenada county. HON. JOHN F. ALLEN, Judge.
John P. Stone, of Coffeeville, for appellants.
The rule excluding parol evidence to vary or contradict a written instrument applies only in controversies between the parties to the instrument and those claiming under them.
22 C.J., page 1291, sec. 1725, and page 1294, sec. 1726; McGruder v. Palmer, 109 Miss. 516, 69 So. 498; Whitney v. Cowan, 55 Miss. 626.
To be a privy to another, a man must claim by or under that other by blood, as heir, by representation, as executor, or by contract, as vendee, assignee, and the like.
Crutchfield v. Hudson, 23 Ala. 393; Rowe v. Johnson, 214 Ala. 510, 108 So. 604.
He who is in privity stands in the shoes or sits in the seat of the owner from whom he derives his title and thus takes it charged with the burden attending it.
Boughton v. Harder, 46 App. Div. 352, 61 N.Y.S. 574; Weston Lbr. Co. v. Lacey Lbr. Co., 123 Miss. 208, 85 So. 193, 10 A.L.R. 436; Lipscomb v. Postell, 38 Miss. 476, 77 Am. Dec. 671.
All admit that our rule of law and everybody's rule of law would prohibit Gid Crenshaw from varying or contradicting his solemn act in signing and acknowledging and recording a deed of trust to the Coffeeville Bank. How vain and foolish and absurd would this rule of law be if by the simple expedient of transferring the property covered by his deed of trust to Vernon Craig and the Grenada Grocery Company they could come in then as his privies and use him to destroy the deed of trust. No man would ever fail to have a friend to whom he could conveniently transfer the property and then swear his solemn acts off the hinges. It is bad enough to have this come-lately repudiation if we had a contest between parties who were not parties or privies to the deed of trust, but it never would do in this world to extend it to the successors in title of the repudiating witness.
Cowles Horton, of Grenada, for appellees.
Where parties embody their mutual agreements in a formal written instrument they make that instrument the evidence and exponent of the things agreed. Such writing, therefore, necessarily becomes, as to its makers, the sole evidence of their contract.
Cocke v. Blackburn, 58 Miss. 539.
The writing, strictly speaking, is not the agreement at all. The agreement is created and comes into existence by the meeting of the minds of the parties upon the terms thereof. By the act of the parties in reducing the agreement to writing, such writing is nothing more or less than the evidence of the agreement which the parties may not dispute. This, as we understand, is the rationale of the rule above referred to.
The rule prohibiting parties from contradicting their own written contract by parole is never applied against third parties claiming adversely to the writing. Such parties never having assented thereto may not be, in law, bound thereby.
Whitney v. Cowan, 55 Miss. 625; Magruder v. Palmer, 109 Miss. 516; Rice v. Troup, 62 Miss. 186; Baum v. Lynn, 72 Miss. 932; Whitbeck v. Whitbeck, 18 Am. Dec. 503; 22 C.J. 1292, sec. 1725; 10 R.C.L. 1020, sec. 213; 1 Greenl. Ev. (Redfield Ed.), sec. 179.
Appellees were never parties to Crenshaw's trust deed, had no connection therewith and make no claim thereunder. On the other hand, their claims are at war with, independent of and antagonistic to that instrument. They are, therefore, not bound thereby and have the right to show that it does not recite the actual agreement of the parties, Crenshaw and the Bank.
Appellees are not privies to the instrument. They occupy in this suit the position of adverse claimants both as to this trust deed and the bank. As such, their rights must be determined by the facts as they are, — not by what the writing erroneously shows to be the facts.
If counsel's position is correct, no purchaser of property would ever be safe for when he succeeded to the title of the vendor he would become a privy to every contract which the seller had ever made in connection with the property. This, we submit, is not the law.
The bank's debt was past due. Crenshaw could not operate to make his 1931 crop without this furnish to make same. The Bank, by its actual agreement, conceded this to be true and permitted Crenshaw to have his crops free to be pledged to these other parties therefor. The Bank, therefore, is in no position to assert its purely technical claim under a rule of evidence never intended to be applied to strangers to the contract.
Butler v. Cruise, 175 Miss. 201; Coffey v. Land, 176 Miss. 114.
Parties who are bound by written instruments are the parties to the instrument. Privies to that instrument are those who either do claim or, under the law, may claim some benefit under the contract. Appellees here neither claim, nor may they claim, under this trust deed. They are, therefore, not in privity to the trust deed.
Baum v. Lynn, 72 Miss. 932.
Argued orally by W.I. Stone, for appellant.
The appellants sued the appellees for the conversion of several bales of cotton. At the close of the evidence, the court directed the jury to return a verdict for the appellees, and there was a verdict and judgment accordingly.
Cotton was grown by G.V. Crenshaw in 1931. On April 2d of that year, Crenshaw executed a deed of trust to Coffeeville Bank to secure an indebtedness due it by him, on several head of livestock and other personal property, and crops to be grown by him. The instrument used for the deed of trust is an ordinary printed form therefor. The property therein described, other than crops, was inserted with a typewriter in a blank space therefor; the crop provision being in the printed portion thereof. This deed of trust was recorded in the office of the chancery clerk on the 7th day of April, 1931. The cotton was sold by Crenshaw to the appellees. Over the objection of the appellants, the appellees were permitted to prove, by Crenshaw, that, at the time the deed of trust was executed, the bank agreed that it should not cover crops to be raised by Crenshaw, and that he did not intend to include crops therein. The admission of this testimony presents the only question for decision.
The appellees' contention is that the rule excluding parol evidence to vary or contradict a written instrument applies only in controversies between the parties thereto, citing several Mississippi cases in support thereof. This rule extends not only to the parties to a written instrument, but also to their privies, i.e., to persons claiming under them. This is so well established, with which the cases cited by the appellees are not in conflict, that a citation of authority therefor would be supererogatory. "By the term privies, is meant those who stand in mutual or successive relationship to the same rights of property." Lipscomb v. Postell, 38 Miss. 476, 77 Am. Dec. 651; 2 Jones on Evidence (2 Ed.), section 907. "Privity implies succession. He who is in privity stands in the shoes or sits in the seat of the owner from whom he derives his title, and thus takes it charged with the burden attending it." Boughton v. Harder, 46 App. Div. 352, 61 N.Y.S. 574, 576.
This evidence should not have been admitted.
Reversed and remanded.