special dissent; and partial concurrence with and partial dissent from the dissent of McCLINTOCK, J-
I am compelled to dissent from the majority opinion upholding the trial court. Particularly, I dissent from the holding of the majority opinion with respect to the parol evidence rule and the doctrine of judicial estoppel. Since my dissent discusses these points, and is dispositive of my position, I do not make any comment about the statute-of-frauds question except to say that I concur in the part of the dissent of Justice McClintock which discusses that subject. I do not agree with the aspect of his dissenting opinion which finds it to have been proper to admit parol evidence under the facts presented by this appeal.
In my judgment, the parol evidence rule was violated. My opinion dissenting from the majority opinion and its conclusions and from Justice McClintock’s position on the parol evidence rule follows. I also *1150take issue with the majority’s application of the doctrine of judicial estoppel.
There were two warranty deeds in issue here. The first was dated the 24th day of February, 1966, and filed of record in the office of the county clerk of Crook County, Wyoming, wherein Norman B. Allen, a single man, Norman B. Allen, Jr., and Virginia R. Allen, husband and wife, appear as grantors and Grace Eaton, a single woman, is the grantee. Deed number two is a reconveyance of the same land by warranty deed the 24th day of February, 1966, and filed of record in the office of the county clerk of the aforesaid Crook County. In the latter deed Grace Eaton, a single woman, conveyed as a grantor to Norman B. Allen, a single man, Norman B. Allen, Jr., and Virginia R. Allen, husband and wife, as joint tenants with rights of survivorship.
There were no ambiguities or relevant restrictions or reservations in the two deeds and they were regular on their face in all respects.
It is the contention of the appellant, Norman B. Allen, Jr., that the reconveyance does what it purports to do, i. e., transfers a one-third interest in all of the described property to the named grantees. Allen, Sr., plaintiff-appellee, urges that the reconveyance instrument was made for purposes of security only and that there was an oral agreement entered into contemporaneously with the execution of the deeds which provided that upon payment of the mortgage, the Allens, Jr., would re-convey to Allen, Sr., all of their right, title and interest in the part of the properties known as the “River Place.”
At no time — either at the trial court level or here — has Allen, Sr., asserted that the Allens, Jr., are estopped to deny the alleged oral agreement.
The majority opinion upholds the lower court where that court found “ . . . the ‘parties intended, represent-
ed and agreed that the lands [River Place] * * * was [sic] to revert and again be the sole property of the plaintiff and the lands and premises [Hapton-stall Place] * * * would be the sole property of the defendants.’ ”
The questions presented on appeal, as stated by the majority, are:
“1. Does the parol evidence rule preclude reformation of a deed complete in its terms?
“2. Is the oral agreement to recovery void as violative of the statute of frauds, § 16-1, W.S.1957, C.1965, ...”
PAROL EVIDENCE RULE
The majority comforts its opinion with this thought:
“In broad spectrum, courts give lip service to the familiar rule that a written instrument, absolute on its face, cannot be varied by parol testimony but, as observed in North American Uranium, Inc. v. Johnston, 1957, 77 Wyo. 332, 348, 316 P.2d 325, 330, citing 3 Corbin on Contracts § 329, the rule has so many vagaries that it is the despair of law teachers and law writers . . . ” [Emphasis supplied]
I not only disagree with this statement, but I further contend that the parol evidence rule should be applied to exclude the testimony concerning the oral agreement in this case.1
*1151In North American Uranium, Inc. v. Johnston, supra, a written agreement provided for the sale of certain mining claims. The purchaser of the claims based his right to ownership on the instrument of conveyance, which on its face gave him absolute ownership. The sellers of the claims attempted to introduce parol evidence showing that the parties agreed that the instrument was to be merely a ninety-day option to purchase the claims. Blume, C. J., held that where a written agreement provided for the sale of certain described mining claims, the theory that such agreement was merely a ninety-day option to purchase contradicted the terms of the writing and, under such circumstances, parol evidence is not admissible to prove an option. For these reasons the Justice held the trial court to have prejudicially erred in receiving it and basing its judgment in whole or in part on such testimony.
In Hoshaw v. Cosgriff, 8 Cir., 247 F. 22, 26 (1917), it was held:
“ . . . it is elementary law that a contract completely reduced to writing cannot be contradicted, changed, or modified by parol evidence of what was said and done by the parties to it, prior to or at the time it was made . . . ”
In Hoshaw it was urged that a deed was given to a bank as security and not for transfer, the court holding that oral testimony could not be even introduced to make such proof — the reason for the decision was that to permit such evidence to vary a written instrument would destroy the value of all written instruments. 247 F. at page 26.
In Bushnell v. Elkins, 34 Wyo. 495, 245 P. 304 (1926), it was alleged that a promissory note regular on its face was really given for the purpose of inducing purchases at a store and that so long as purchases were made the note need not be paid. The court would not hear the oral representations and held them inadmissible, saying that when the parties have put their engagements in writing and they are certain and definite, it' is to be concluded that the whole contract of the parties was reduced to writing and the contract cannot be contradicted, added to or varied by parol evidence. 245 P., page 306.
We held in Soppe v. Breed, Wyo., 504 P.2d 1077, 1078:
“ . . . limitations imposed by the parol evidence rule are directed at a showing which would contradict, vary, or alter the terms of the instrument . . . ” Citing Parkinson v. Roberts, 78 Wyo. 478, 329 P.2d 823, 826.
In Parkinson, supra, at page 826 of 329 P.2d, this court said:
“We turn then to a consideration of the court’s rulings which admitted testimony of conversations occurring between the contracting parties prior to the execution of the purchase offer to the effect that Parkinson had to sell his house to raise $7,400 and that he was to have until July 1 to complete the transaction. Defendants urge the well-recognized rule that the terms of a written agreement cannot be altered by parol testimony, citing North American Uranium, Inc., v. Johnston, [77] Wyo. [332], 316 P.2d 325. This rule — correct, although quite broadly stated — is subject to the limitation that oral statements made previous to the time of the execution of a written instrument may in exceptional cases be shown as part of the surrounding facts if they do not contradict or vary the terms of the instrument. See 20 Am.Jur. Evidence §§ 1147, 1160; 32 C.J.S. Evidence §§ 929, 959, discussing exceptions . . . ” [Emphasis supplied]
*1152Therefore, the vagaries which arise as a consequence of the exceptions to which the majority opinion refers are restricted to circumstances showing the surrounding facts
“if they do not contradict or vary the terms of the instrument.”
I cannot reconcile the following statement from the majority with logic:
“ . . . The state of facts here is that the parol evidence received is admissible in that it does not vary the terms of the deed to the straw man and the deed to the defendants but explains their purpose and proves an oral agreement to reconvey entered into previous to their execution.2” [Majority’s footnote 2]
The deed was regular on its face — contained no ambiguities whatsoever and was made at and about the same time as the purported oral agreements. Under all of the authorities cited hereinabove, there can be no testimony admitted for the purpose of explaining, changing or altering the terms of the written instrument. Based upon the case law of this court, I must take a position opposed to any representation which purports to say that a deed which on its face conveys property from A to B is not changed by an oral agreement which has the effect of not conveying the property from A to B. The effect of such tinkering destroys the integrity and efficacy of written instruments. For me, such an attack upon the written word makes a mockery of the very form and substance of reason and logic and I cannot accept it. I take no comfort from the argument that innocent third-party purchasers were not involved. The next time they will be if we do not stand here in protection of the written contract.
JUDICIAL ESTOPPEL
The majority opinion seeks to inject a contention in the case which was never placed there by the parties or contemplated by them; nor was it contemplated by the trial court. It was not made an issue on appeal in this court. The majority says:
“The defendant himself has established the agreement and he is bound by the doctrine of judicial estoppel . . . ”
[Emphasis supplied]
The majority then says:
“We are not a bit concerned that the matter of judicial estoppel was not raised in the lower court or argued by either of the parties. This court has general superintending control over all the courts of the state (citing, by footnote 4, Section 2, Article V, Wyoming Constitution) and the Wyoming judicial system in general. It is our duty to protect its integrity and prohibit dealing lightly with its proceedings. We are at liberty to decide a case upon any point which in our opinion the ends of justice require, particularly on a point so fundamental that we must take cognizance of it.” 2 [Emphasis and parenthetical matter supplied]
Estoppel, like failure of consideration, fraud, statute of frauds, and other matters constituting an avoidance, are affirmative defenses3 and cannot be relied upon except when pled, nor can they be considered for the first time on appeal.4
*1153There is no allegation in this case of es-toppel, mistake, fraud, undue influence or over-reaching on the part of the son with respect to his father. Estoppel has never been a consideration until raised for the first time in the majority opinion here. The adjudication by the trial court was that the oral evidence showed that the deed in question was, in reality, a security instrument. There was not a word mentioned about estoppel in the court’s pretrial or final order, and neither the appellant nor the appellee raises this affirmative matter by pleading, pre-trial memoranda, brief or argument to this court.
A question not raised in the trial court cannot be considered by the supreme court. Mader v. James, Wyo., 546 P.2d 190, 195.
I said in my dissent in Simpson v. Petroleum, Inc., Wyo., 548 P.2d 1:
“The author of the majority opinion here wrote, very recently (February 12, 1976), in the cases of Mader v. Fanning; James v. Fanning; and Mader v. James, Wyo., 546 P.2d 190, 195:
“ ‘ . . .A question not raised in the trial court cannot be considered by the supreme court. Guggemos v. Tom Searl-Frank McCue, Inc., Wyo. 1971, 481 P.2d 48, 51; Gaido v. Tysdal, supra [68 Wyo. 490, 235 P.2d 741]. See also the multitude of cases cited in West’s Wyoming Digest, Appeal and Error, <3=n69.’
“In my judgment, the majority opinion in this appeal destroys the efficacy of this rule, rendering it so devastated and shattered as to be incapable of being longer relied upon by the Bench and Bar for appellate purposes.”
My fears — expressed in the Simpson dissent — seem somehow prophetic!
It takes great restraint for me to rationally contemplate a holding which demolishes the requirements of the rules of civil procedure and case law by saying in effect that we can do whatever we want — no matter what the rules or case precedent say. To me, the majority opinion, when it says,
“ . . . We are at liberty to decide a case upon any point which in our opinion the ends of justice require, ...”
is really saying that we will first decide what we think the “ends of justice” are and then arrive at that conclusion in a way suitable to us whether or not the prec-edential and statutory vehicles are available — whether or not the issues are raised by the pleadings — pre-trial proceedings— the evidence — or the appellate documents. I do not contemplate this to be our role — - our power — or our mission.
I am just as cognizant as my Brothers of the Court — and I like to think any other human being — concerning the doctrines of equity. What is right and fair and kind and good are the usual and ordinary adjuncts of the law because it is in these best human qualities that the law is born, nurtured and in which it survives; and yet — I know — as do we all — that there will be isolated instances when inequity will result while the great principles of law are being protected and guarded by the courts. The conclusion I would reach in this case may very well be such an example. But the conclusion is reached — not out of my choice and not because the tools of equity were not available — but because they were not utilized by those who had the duty to use them. We do not possess the power to correct those mistakes by authority of any rule of law with which I am familiar.
The law is not perfect. Still the greatest inequity of all will result in its abandonment in order to accommodate the impression of what we as judges — ignoring the guidelines of procedure and precedent— might, at the moment, decide is right or wrong, fair or unfair, equitable or in*1154equitable. To say, in the context of the majority opinion, that
“ . . . We are at liberty to decide a case upon any point which in our opinion the ends of justice require, . . . ”
seems to me to be a reaching out and embracing of such a dangerous philosophy.
I conclude, therefore, that for the reasons set out immediately above, estoppel should not have been a consideration in this opinion. Additionally, I would have held that under the rule of Hoshaw v. Cosgriff, supra, Bushnell v. Elkins, supra, North American Uranium v. Johnston, supra, Soppe v. Breed, supra, Parkinson v. Roberts, supra, and perhaps others, parol evidence should not have been allowed because it was introduced for the purpose of varying and altering the terms of the deeds. In other words, the evidence of a separate oral agreement with respect to the deeds was introduced for the purpose of showing that the parties did not intend that the instruments serve as warranty deeds as they purported to be — but they were intended to be something other than warranty deeds — namely security instruments. The effect of this oral testimony was given for the purpose of — and ultimately has had the effect of — altering and varying the terms of the instruments.
The reason for the parol evidence rule, as expressed and relied upon historically by this court, has been to save and preserve the integrity of the written word so that all may confidently rely upon their agreements which they have reduced to writing.
To play games with a warranty deed — in all respects regular on its face — by changing its effect through proof of an inconsistent oral agreement made by the parties to the deed at the time it was executed is — I think — to destructively attack the sanctity of all business and legal writings.
I would have reversed.
. Footnote 2 of the majority opinion makes mention of the concept that oral evidence is admissible to show that a writing is a sham and not intended to create legal relations. 71 A.L.R.2d 382, 384, is cited for this proposition. Without discussing this in detail, I observe that the last-cited ,A.I/.R.2d article stands as authority for the proposition that, if such a defense is to be relied upon, it must be alleged and proven. The article says, at page 383:
“ . . .To come within the scope of the present annotation, a case must involve a situation in which it is alleged by one of the parties that a written agreement relied upon by the opposing party is a sham agreement of the kind described above; furthermore, the court, when deal*1151ing with the parol evidence rule, must have considered the effect of the agreement as a sham.’’ [Emphasis supplied]
I further observe that the sham agreement philosophy was neither pled, proven, nor at any point relied upon in this case and is, therefore, not available for our consideration under Rule 8(c) Wyoming Rules of Civil Procedure, which is quoted in detail in footnote 3, infra. Therefore, I do not discuss the sham contract theory.
. See footnotes 5 and 6 of the majority opinion for the authorities cited.
. Rule 8(c), Wyoming Rules of Civil Procedure is as follows:
“(c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter consituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.” [Emphasis supplied]
.Ranger Ins. Co. v. Cates, Wyo., 501 P.2d 1255; Title Guaranty Co. of Wyo. v. Midland Mortg. Co., Wyo., 451 P.2d 798; Chi*1153cago & N. W. Ry. Co. v. Continental Oil Co., 10 Cir., 253 F.2d 468; Sturgen v. Brooks, 73 Wyo. 436, 281 P.2d 675; Lellman v. Mills, 15 Wyo. 149, 87 P. 985; McCarthy v. Union Pacific Ry. Co., 58 Wyo. 308, 131 P.2d 326.