I concur in the majority opinion in holding that there was no merger in the deed of that part of the agreement wherein appellant agreed to furnish respondent an abstract of title to the lands purchased by respondent. The abstract of title is wholly separate, detached and apart from the title itself, and forms the basis of an obligation independent of the deed.
In the agreement for the conveyance of the premises it was provided "that there is now due the Pacific Savings Loan Association of Tacoma, Washington, the sum of $2,315.80, which said second party (respondent) assumes and agrees to pay. . . . . The party of the second part further agrees to pay one-sixth of the 1923 taxes . . . ." It was further stipulated in the agreement that appellant would furnish respondent an abstract of title to said property *Page 401 showing the same to be clear of any and all liens except as in the agreement mentioned. In the deed it was provided that "this deed is executed and delivered and the property above described is hereby conveyed subject to a first mortgage of $2,315.80 . . . . which mortgage the party of the second part hereby assumes, together with any accrued interest thereon, subject also to the taxes for the year 1923 which are to be prorated." There is no mention in the deed of outstanding taxes due and delinquent against the premises for the years 1921 and 1922. Appellant's contention is that the court erred in permitting respondent to introduce evidence to vary the terms of the deed and in holding that under the stipulations contained in the agreement, appellant was liable for the taxes for the years 1921 and 1922, appellant insisting that all stipulations, in writing or otherwise, entered into prior to the signing and delivery of the deed, were merged in the deed. There is authority for the rule that a deed executed in consummation of an agreement merges all prior negotiations and agreements relating thereto, and, in the absence of fraud or mistake, the deed must be the sole guide for measuring and determining the rights of the parties. (9 Cal. Jur. 258; Sisk v. Caswell,14 Cal. App. 377, 112 P. 185.) In Goldman v. Davis, 23 Cal. 256, cited in Nicholson v. Tarpey, 89 Cal. 617, 26 P. 1101, the rule is stated as follows:
"The law deems all such stipulations merged in the writing, which, in the absence of fraud, accident, or mistake, is treated as the exclusive medium of ascertaining the agreement to which the parties bound themselves."
The agreement and the deed in the instant case may have differed widely; the rights of the parties, however, are to be determined from the deed. The deed expressly, and in terms that are plain and unambiguous, recites that it is executed and delivered and the property conveyed subject to a certain mortgage and also subject to the taxes for the year 1923, which are to be prorated. Respondent took the deed with knowledge of the fact that the premises were conveyed to him subject to the taxes for 1923, which were *Page 402 to be prorated. Respondent knew, or should have known, that taxes for other years were outstanding, and when he settled with appellant for the 1923 taxes he had actual knowledge that the taxes for 1921 and 1922 were outstanding, but for nineteen months he made no complaint and gave no intimation that he intended to hold appellant for the 1921 and 1922 taxes, under the agreement or otherwise, until a short time before he brought this action, — from which it might be inferred that the intention of the parties was, with reference to the payment of taxes, expressed in the deed, and that appellant was to be responsible only for a pro rata share of the 1923 taxes.
It seems to me there was a clear merger of the agreement in the deed, except as to the furnishing of the abstract. As was said in Oliver Refining Co. v. Portsmouth Cotton Oil RefiningCorp., 109 Va. 513, 132 Am. St. 924, 64 S.E. 56:
"Where a deed has been accepted as a performance of an executory contract to convey real estate, the rights of the parties rest thereafter solely in the deed, although the deed varies from the one provided for in the contract, and the law remits the grantee to his covenants in his deed, if there has been no fraud or mistake."
In Bean v. Munger Land Co. (Mo.App.), 265 S.W. 844, it is held that under the rule that all contracts and agreements for purchase of land become merged in deed, court's refusal to receive evidence of original contract of purchase between parties was proper. *Page 403