At the trial the defendants were allowed, over the objection of the plaintiff, to enter the oral agreement concerning the cupboard in evidence. The Trial Judge found as a matter of law that the cupboard was a fixture, and the jury found that appellant's attorney did make such an agreement and gave a verdict in favor of the defendants.
A fixture is personal property which has had its character changed to that of real property by affixation to real property in such a manner that it becomes a part thereof. *Page 583 SDC 54.0207; 2 Tiffany Real Property, 3rd Ed., p. 557, § 606. Since the above is true any agreement involving this cupboard would be an agreement involving real property which under the Statute of Frauds SDC 10.0605 must be in writting. A written conveyance of the house and lot would convey the cupboard in the absence of a written reservation to the contrary. Pattison v. Hull, 1828, 9 Cow., N.Y. 747. In this case the warranty deed signed by the vendors, the Gotwals, conveyed the property to which the cupboard was attached with no written reservation of the cupboard.
The appellant contends, among other assignments of error, that the evidence of the oral agreement was inadmissible on the grounds (1) that it is an attempt to change the terms of a written contract by the introduction of parol evidence in violation of the parol evidence rule, and (2) it is an attempt to convey real estate orally in violation of the Statute of Frauds.
There are authorities which hold that a grantor may introduce parol evidence to show an oral agreement between himself and the grantee to the effect that fixtures that had become realty were by agreement between the parties to become personalty again and be excepted from the operation of a deed passing the realty to which the fixture was attached. See Frederick v. Devol,15 Ind. 357; Strong v. Doyle, 110 Mass. 92; Pea v. Pea, 35 Ind. 387. The Trial Judge in the case at bar may have had this in mind when he admitted the evidence on which this appeal was taken.
There is, however, an abundance of authority which holds that where an owner attaches a fixture to the land and it thereby becomes realty, an oral agreement between a grantor and grantee of the land reserving the fixture to the grantor and excepting it from the operation of a deed conveying the realty of which the fixture has become a part, cannot be shown by parol evidence.
"As to whether fixtures, while annexed to the land, may be by parol excepted from the operation of a deed conveying the land upon which they are situated, there is a conflict of authority. If fixtures, while annexed, are to be *Page 584 considered as partaking of the nature of realty, which clearly is the case where annexed by the owner of the freehold, the better opinion seems clearly to be, that a sale and conveyance of the real estate will (there being no exception in the deed of conveyance) pass the fixtures thereto annexed, notwithstanding a parol exception thereof at the time of such sale, not only because such parol exception is within the Statute of Frauds, but also because to admit parol evidence thereof, would contravene the rule that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument. * * *". Ewell on Fixtures, 2nd Ed., p. 515.
The evidence is sometimes excluded on the ground that to give effect thereto would involve a violation of the parol evidence rule. Stoefen et al. v. Brooks et al., 66 S.D. 587, 287 N.W. 330; Janssen v. Tusha et al., 66 S.D. 604, 287 N.W. 501; Beebe v. Pioneer Bank Trust Co., 34 Idaho 385, 201 P. 717; Smith v. Price, 39 Ill. 28, 89 Am. Dec. 284; Noble v. Bosworth, 19 Pick., Mass., 314; Conner v. Coffin, 22 N.H. 538; Leonard v. Clough,133 N.Y. 292, 31 N.E. 93, 16 L.R.A. 305; Bond v. Coke, 71 N.C. 97; Blake-McFall Co. v. Wilson, 98 Or. 626, 193 P. 902, 14 A.L.R. 1275, and note. Some courts exclude the evidence on the ground that it would violate the Statute of Frauds. Townson v. Smith, 13 App. D.C. 48; Noble v. Bosworth, supra; McLeod v. Clark,110 Miss. 861, 71 So. 11; Leonard v. Clough, supra; Bond v. Coke, supra; Clark v. Clark, Tex. Civ. App. 107 S.W.2d 421; In re Perkins, 65 Vt. 313, 26 A. 637; Pattison v. Hull, supra; Alsterberg v. Bennett, 14 N.D. 596, 106 N.W. 49; Lanier v. Winchester, 7 Ga. App. 227, 66 S.E. 626.
It would seem then that according to the general rule the evidence introduced in the present case was in fact inadmissible, either under the theory that it is an attempt to convey an interest in real estate by means of an oral agreement which is by SDC 51.1401 required to be in writing, or under the theory that it is an attempt to vary the terms of a written instrument by parol evidence which is by law inadmissible. Thompson v. Dakota Independent Oil Co., 67 S.D. 27, 288 N.W. 148. Respondent has called attention to *Page 585 certain authorities. Among them I find De Rue v. McIntosh,26 S.D. 42, 127 N.W. 532, and Farmers' Elevator Co. v. Swier et al.,50 S.D. 436, 210 N.W. 671. I think that in the latter case this court distinguished the De Rue v. McIntosh case sufficiently and it needs no further comment or additional statement here. In the case of Cullen v. Sports, 47 S.D. 339, 198 N.W. 708, plaintiff sued on a rent note and defendant set up a counterclaim alleging the failure of a water supply and attempted to introduce evidence of an oral agreement by plaintiff to furnish sufficient water. No allegation of fraud, mistake or inducement was made and the court cited Section 860, Rev. Code 1919, now SDC 10.0604 as follows: "The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument." The court concluded that parol evidence of the oral agreement was inadmissible. In the concurrence with the courts that follow the rule of law in the exclusion of parol evidence I agree, that there being no exception in the deed of conveyance, that the fixtures that are annexed automatically pass with the grant in the deed, and I quote from Blake-McFall Co. v. Wilson, supra [98 Or. 626, 193 P. 906, 14 A.L.R. 1275]:
"If personalty has been transformed into realty, then logically it ought to be governed by the rules which control realty. The precedents which reach the conclusion that a fixture may by a parol agreement be constructively reconverted from realty into personalty do so only by adopting artificial and arbitrary premises. Moreover, the universal rule is that, in the absence of an agreement, a fixture which has taken on the character of realty passes with a conveyance of the land and that it passes by force of the writing. If then the writing enforces a transfer of the fixture, the force of the writing is opposed and the terms of it are necessarily contradicted by any agreement which purports to withdraw such fixture from the operation of the deed; and therefore, if that agreement rests in parol, it inevitably results in an attempt by parol to vary the terms of the written deed." *Page 586
In Alsterberg v. Bennett, supra, the court expressed the almost hopelessness of the task of attempting to analyse and discuss the mass of cases bearing on the question as to what constitutes a valid independent or collateral agreement in varying the terms of a written instrument, and then concluded as follows [14 N.D. 596, 106 N.W. 51]: "The whole subject is discussed in Wigmore on Evidence, § 2427 et seq. We hold that it must be conclusively presumed that the deed in this case is the sole evidence of the obligations of the grantor with respect to the nature and condition of the title, and hence supersedes all prior or contemporaneous oral agreements or stipulations on his part concerning that matter."
It is my opinion that the evidence of the oral agreement was inadmissible, Farmers' Elevator Co. v. Swier et al., supra, and that the appellant's motion for judgment notwithstanding the verdict should have been sustained.