#### HARMON PATE v. R. T. GAITLEY et al.

(Filed 5 April, 1922.)

1. Deeds and Conveyances — Consideration—Parol Evidence — Statute of Frauds. ■

Parol evidence to show the actual consideration in a deed to lands, executed and delivered, different from that therein expressed is neither at variance with the rule against changing or adding to the terms of a written instrument, nor within the prohibition of the statute of frauds, hut is of an independent contract outside of the covenants appearing in the deed, and the vendor may prove by parol the amount thereof, the terms of payment and its nonpayment.

3. Same — Rental—Actions—Damages.

During the continuance of the lease of a large tract of land for the agreed annual payment of fifteen bales of cotton as rent, the lessee obtained an option of purchase at the price of $15,000, which he exercised in September of that year, receiving from the lessor and the owner a warranty deed of the locus m quo with full covenants: Sold,, parol evidence was competent to show that the agreed rental was reserved from the purchase price of the land, expressed in the deed, in the vendor’s action to recover the rent cotton or its value.

Appeal by defendants from Kerr, J., at December Term, 1921, of ROBESON.

Civil action to recover fifteen bales of cotton, or tbe value thereof, as rent for a 200-acre farm for tbe year 1919, wbicb subsequently, by agreement, entered into and became a part of tbe purchase price of tbe land — tbe defendant R. T. Gaitley having bought tbe farm during bis tenancy.

From' a verdict and judgment in favor of plaintiff, tbe defendants appealed.

Johnson & Johnson and McLean, Varser, McLean & Stacy for plaintiff.

McIntyre, Lawrence & Proctor for defendants.

Stacy, J.

Tbe defendants leased from tbe plaintiff a valuable farm, located in Robeson County, and containing about 200 acres, for tbe years 1918 and 1919; and, as rent for said farm, it was stipulated and agreed in a written contract between tbe parties that tbe defendants should deliver to tbe plaintiff, “at Parkton, N. 0., on or before 15 October of each year, during tbe life of said lease, fifteen bales of middling lint cotton, averaging 500 pounds to the bale.” Later, and during tbe continuance of said lease, tbe defendant R. T. Gaitley took a written option from tbe plaintiff, whereby be acquired tbe right to purchase tbe farm in question at and for- tbe price of $15,000. This *263option was exercised on or about 10 September, 1919, at wbicb time tbe plaintiff executed and delivered to tbe said defendant a warranty deed, witb full covenants, conveying to bim tbe locus in quo, same being tbe originally demised premises.

At tbe time of tbe execution of tbe option, and again upon tbe signing and delivery of tbe deed, conveying tbe property in question to tbe defendant, it was specifically agreed and understood between tbe parties tbat tbe rent, as previously stipulated, for tbe year 1919 should' be reserved and paid to tbe plaintiff by tbe defendants in accordance witb tbe terms of tbe rental contract. Tbe jury bave found tbat tbis understanding and agreement existed not only before tbe execution of tbe said option and deed, but tbat tbe same, as alleged in tbe complaint, was “specifically reiterated, repeated, and agreed to at tbe time of tbe execution of tbe said option and execution and delivery of said deed, all of wbicb was fully assented to and agreed to by tbe defendant E. T. Gaitley, and be did tben and there repeat bis promise to pay said rent for tbe year 1919, in accordance with tbe said written lease.”

But tbe said defendant E. T. Gaitley now contends tbat as be held a deed for tbe land and was tbe owner thereof at tbe time tbe 1919 rent •fell due, be is no longer liable to tbe plaintiff therefor, but tbat said rent passed to bim under bis deed, as owner of the property. For tbis position be relies upon tbe following decisions: Mixon v. Cofield, 24 N. C., 301; Lewis v. Wilkins, 62 N. C., 307; Kornegay v. Oliver, 65 N. C., 69; Rogers v. McKenzie, 65 N. C., 218; Lancashire v. Mason, 75 N. C., 459; Holly v. Holly, 94 N. C., 674.

We do not think tbis position can avail tbe defendant in tbe face of tbe jury’s finding tbat be bad agreed otherwise, and tbat such consti- • tuted a part of tbe consideration given for bis option and deed. It is well settled tbat a vendor, in a suit for tbe purchase price of land, may prove by parol tbe amount thereof, tbe terms of payment and its nonpayment, notwithstanding tbe deed may contain a recital or acknowl-edgm'ent contrary to tbe real transaction between tbe parties. Faust v. Faust, 144 N. C., 383; Grabow v. McCracken, 23 Okla., 613; 23 L. R. A. (N. S.), 1218, and note. Such recital is only prima facie evidence of tbe payment of tbe purchase price, and may be rebutted by parol testimony. Barbee v. Barbee, 108 N. C., 581.

In Michael v. Foil, 100 N. C., 179, tbe deed recited a consideration of $500, but tbe court admitted parol evidence to show tbat at tbe time of tbe conveyance tbe grantee agreed witb tbe grantor tbat.be should bave one-balf of tbe proceeds of tbe sale of tbe mineral interest in tbe land, if such sale were made during bis lifetime, and tbat such entered into and became a part of tbe consideration and inducement for tbe transaction. To like effect is Manning v. Jones, 44 N. C., 368.

*264The admission of tbis character of evidence is not at variance with the rule against changing or adding to the terms of a written instrument by parol, nor is it prohibited by the statute of frauds. Harper v. Harper, 92 N. C., 300. The deed is not in controversy. It was executed by the plaintiff in performance of his part of the contract for the sale of the land, and it is but meet that the defendant should likewise comply with his agreement in regard to the amount that should be paid. The statute of frauds was not intended to shelter or to shield frauds, but to prevent them. 39 Cyc., 171; McNinch v. Trust Co., ante, 33, and cases there cited.

In the instant case, the sale of the land is an accomplished fact; the deed has been executed and delivered; title has passed, but this ipso facto did not have the effect of relieving the defendant from his obligation" to pay what he had agreed to pay- The contract in regard to the rent added no new covenant to the deed, nor did it contradict or explain any one that was incorporated in it. On the other hand, the plaintiff specifically affirms the deed and is now seeking to recover the full purchase price of the land.- The suit is based upon an independent contract outside of, but in nowise in conflict with, the covenants appearing in the deed. “The recital of the amount of the consideration, or of its-receipt, can be contradicted in an action to recover the purchase money, but that is because this is no. part of the conveyance.” Campbell v. Sigmon, 170 N. C., 351.

As the rent cotton was evidently intended to be paid out of the crops grown upon the farm in question, it would seem that the reservation might be justified, also, under the doctrine announced in Flynt v. Conrad, 61 N. C., 191, and other cases to like import; but, as the fact does not affirmatively appear — the written lease not being set out in the record— we deem it unnecessary to discuss this suggested phase of the case.

We have found no error in the trial, and the judgment of the Superior Court will be upheld.

No error.