
    Woodard v. Foster.
    
      (Supreme Court, General Term, Fourth Department.
    
    April, 1892.)
    Parol Evidence—Contradicting Written Instrument.
    Parol evidence is inadmissible to show an agreement that the grantor of land in fee simple might retain possession for life.
    Appeal from judgment on report of referee.
    Action by Lucinda Woodard against William J. Foster to recover possession of certain real property. From- a judgment for defendant, entered in Cortland county, plaintiff appeals.
    Reversed.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      Jerome Squires and W. C. Crombie, for appellant. George B. Jones and Riley Champlain, tor respondent.
   Martin, J.

An important, if not the controlling, question in this ease is whether the referee properly admitted paroi evidence to show that before and at the time of the delivery of the deed from the defendant to plaintiff’s husband it was agreed by the parties that the defendant should retain the use of the premises during his life. Although this question is controlled by the rules of evidence, yet the solution involves a substantial determination of the controversy between the parties. The rule invoked by the appellant is that making paroi evidence inadmissible to contradict or vary the terms of a -written instrument. The existence of this rule cannot be disputed, but there are exceptions to it, and it is not always easy to determine whether the evidence is within the rule or falls under some of the exceptions. In the case before us the plaintiff’s action was to recover the possession of certain real property to which she claimed title under a deed from her husband, to whom the defendant had conveyed the premises in fee. The defense interposed,'and which prevailed, was that, previous to and when the deed was executed and deliv•erect, as a part consideration therefor, it was verbally agreed between the grantor and grantee that the former should have the use of the premises as long as he lived, and should pay the taxes thereon and keep them in repair, which he did up to the time of the trial. The obvious result of the evidence introduced to establish this claimed defense, if given effect, was to reduce the title conveyed by the defendant’s deed, and to carve out of an absolute title in fee simple a life estate in the grantor. Thus the question is presented whether paroi evidence was admissible for that purpose. That it was inadmissible under the general rule prohibiting the admission of paroi contemporaneous evidence to contradict or vary the terms of a valid written instrument there can be no doubt. It is, however, contended that the evidence was admissible under, an exception to the rule which permits paroi evidence when the original contract is verbal and entire, and a part only is reduced to writing. The existence of this exception must be recognized, but evidence is not admissible under it which contradicts or varies the written instrument; to be admissible, it must be consistent with it. Chapin v. Dobson, 78 N. Y. 74; Thomas v. Scutt, 127 N. Y. 138, 138, 27 N. E. Rep. 961. Therefore the evidence was not admissible under that exception, because it was not consistent with, but in contradiction of, the deed. There is no claim that the deed was to be given full effect, and the plaintiff’s grantor to execute to the defendant a valid lease. The evidence shows that that was not contemplated. We are of the opinion that the evidence admitted fell within the condemnation of the general rule excluding paroi evidence, when, in effect, it would change or destroy the agreement between the parties which they had reduced to writing. This conclusion seems to be sustained by the authorities. Wilson v. Deen, 74 N. Y. 531; Eighmie v. Taylor, 98 N. Y. 288; Snowden v. Guion, 101 N. Y. 458, 462, 5 N. E. Rep. 322; Long v. Iron Co., 101 N. Y. 638, 4 N. E. Rep. 735; Corse v. Peck, 102 N. Y. 513, 7 N. E. Rep. 810; Landers v. Cooper, 115 N. Y. 279, 22 N. E. Rep. 212; Gordon v. Niemann, 118 N. Y. 152, 23 N. E. Rep. 454; Engelhorn v. Reitlinger, 122 N. Y. 76, 25 N. E. Rep. 297; Read v. Bank, 124 N. Y. 671, 27 N. E. Rep. 250; Thomas v. Scutt, 127 N. Y. 138, 27 N. E. Rep. 961. The case of Hutchins v. Hutchins, 98 F. Y. 56, was very similar to this in many respects. In that ease it was held that a reservation of a life estate to the grantor could not be proved by paroi when there was a deed in fee. The authorities cited are, we think, decisive of the question, and require that the judgment should be reversed. Judgment reversed on the exceptions, and a new trial granted, with costs to abide the event.

All concur.  