The contract between William F. Rogers and Thomas J. Rogers was executed by the delivery of the deed by the former to the latter. In the absence of fraud, and there was a total absence of fraud in this case, the terms of the contract were to be explained and governed by the terms of the deed into which the former had merged, and the purchaser’s only right for relief depended upon the covenants for title which he had received. Rawle on Con. for Title, 459. The terms of the written contract could not be added to or varied by oral testimony. Pearson v. Carson, 69 Mo. 551, and cases cited; Ely v. Kilborn, 5 Denio, 515.
Had the deed conveyed by quit-claim the grantor’s right, title and interest in the land, in the absence of fraud on the part of the grantor, the total want of title in the grantor would not have constituted a want of consideration for the note. The execution of the deed would have been a sufficient consideration. Carter v. Harber, 18 Mo. 207. Nor would it have been competent for the grantee or his representative to have shown, in an action on the note, that the contract contained a warranty of the grantor’s right, title and interest, or that it contained any terms or conditions other than those named in the deed.
*509The words of the granting clause of the deed, conveying the grantor’s right, title and interest in and to the land, were only effectual to convey that which the grantor had the lawful right to convey. Farrar v. Patton, 20 Mo. 83. But what was the effect of the covenant of warranty contained in the deed ? It would seem, perhaps, that the warranty, though general in its terms and broader than the terms of the grant, should be held to be co-extensive with the grant, rather than to extend the grant. Bogy v. Shoab, 13 Mo. 380. To so hold is in the interest of the plaintiff.
Holding the warranty to have such effect only, we find that by the deed the grantor did not quit-claim his light, title and interest in and to the land, but that he conveyed such right, title and interest warranting that he had some right, title and interest to convey.
And if, in fact, the grantor had no right, title or interest to convey, the deed conveyed nothing ; there was a'total failuie of consideration, and the note was nudum pactum.
It is a settled rule that a vendee of land who has received a deed with covenants of warranty, and who has been let into gtossession, cannot, when sued at law on the notes given for the purchase money, set up the defence of a want or failure of consideration, without showing an actual eviction. Hunt v. Marsh, 80 Mo. 398, and cases cited.
In this case, under the construction which we have made of the deed, the grantor did not undertake to convey the fee-simple title to the land, but he simply undertook to convey the right, title and interest had by him. That right, title and interest were claimed to be the share of an heir in the land left by the grantor’s father. The father left numerous heirs, and had the will been invalid, the grantor would have had only an undivided interest in the land, and such interest did he claim. The grantor could not have put the grantee in possession of said interest until the land had been partitioned or *510divided among the heirs according to law, and such partition could not have taken place until the will had been set aside. The rule to which we have referred can have no application to this case. That rule does not apply to a case in which the deed conveys an unknown, uncertain and undetermined interest in the land. But to such a case would seem to apply the principle, on which is based the rule, that the covenants of seizin are .broken as soon as made when the land conveyed is in possession of a stranger, at the date of the deed, under a paramount title, and substantial damages are recoverable by the grantee. Cockrell v. Proctor, 65 Mo. 46.
Inasmuch as the grantor warranted that he had some right, title and interest in the land to convey; inasmuch as it was impossible for the grantor to place the grantee in possession of the only interest claimed by the grantor in the land, until the will had been set aside, it does not appear how any harm could have been done to the plaintiff by the second declaration of law given for the defendant. This is true because the parol undertaking and promise on the part of the grantor, referred to in the said declaration of law, were in effect contained :in the written warranty. By taking a warranty the grantee showed conclusively that he bought an interest in the land and not a law suit. The law suit was the •grantor’s. Until placed in possession of some interest had in the land, unless, indeed, the grantor had an interest therein which the grantee could have lawfully taken possession of, the grantee did not have to pay any part .of the purchase price of the land.
. • And no harm was done to the plaintiff by said declaration of law for another reason. Under the will the grantor in the deed had no right, title or interest whatever in the land. The will not having been set aside was binding in this case. There was a total want of consideration, therefore, because the grantor had no right, title or interest which he could convey, and the judgment must have been for the defendant.
*511It follows from what we have said that it was proper for the defendant to prove by oral testimony that the noté in suit was executed in consideration of the execution of the deed by William F. Rogers, and that said Rogers had no right, title or interest described in said deed; that no harm was done to the plaintiff by the introduction of the evidence, objected to by him, to prove certain facts not material to the real issue, because it clearly appeared from competent proof that there was a total want of consideration for said note; and that the judgment was for the right party.
The judgment is affirmed.
All concur;