
    Lucinda Woodard, App’lt, v. William J. Foster, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 13, 1892.)
    
    1. Evidence—Parol to vary written contract.
    Under the exception to the general rule prohibiting paroi evidence to contradict or vary a written instrument which permits such evidence when the contract is only partly reduced to writing, paroi evidence is admissible only where it is consistent with the written instrument, and not where it contradicts or varies it.
    
      % Same—Deed.
    Parol evidence is not admissible under such exception to the rule to show that at the time of giving a deed it was agreed that the grantor should have the use of the premises during in's life and pay1 taxes and keep the premises in repair.
    Appeal from a judgment entered in Cortland county, June 2, 1889, on the report of a referee.
    
      Jerome Squires and W. C. Cromlie, for app'lt,; George JB, Jones and Riley Champlain, for resp’t.
   Martin, J.

An important, if not the controlling, question in this case 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, its solution involves a substantial determination, of the controversy between the parties

The rule invoiced 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 delivered, as a part consideratioú 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 hé' 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 tliat 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 id., 133, 138; 38 St. Rep., 692. 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. Dean, 74 N. Y., 531; Eighmie v. Taylor, 98 id., 288; Snowden v. Guion, 101 id., 458, 462 ; Long v. The Millerton Iron Co., id., 638; 1 St. Rep., 38; Corse v. Peck, 102 N. Y., 513; 2 St. Rep., 493; Landers v. Cooper, 115 N. Y., 279; 26 St. Rep., 272; Gordon v. Niemann, 118 N.Y., 152; 28 St. Rep., 616; Engelhorn v. Reitlinger, 122 N.Y., 76; 33 St. Rep., 275; Read v. The Bank of Attica, 124 N. Y., 671; 36 St. Rep., 894; Thomas v. Scutt, 127 N. Y., 138; 38 St. Rep., 692.

The case of Hutchins v. Hutchins, 98 N. Y., 56, was very similar to this in many respects. In that case 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

Hardest, P. J., and Merwin, J., concur.  