dissenting: In my opinion, the oral agreement in the instant case violates the statute of frauds for the reasons hereafter assigned.
No doctrine is better established or more frequently applied than the following: Where parties have carried on negotiations, and have subsequently entered into an agreement in writing with respect to the subject matter covered by such negotiations, the written agreement constitutes the contract between them and determines their rights. (Arensman v. Kitch, 160 Kan. 783, 789, 165 P. 2d 441, including cases cited therein; and Oliver v. Nugen, 180 Kan. 823, 308 P. 2d 132.)
In Brown v. Beckerdite, 174 Kan. 153, 254 P. 2d 308, it was said when oral conversations or négotiations lead to the execution of a written contract, they are to be merged into the written instrument, from which the terms of the contract are to be determined.
It has also been recognized that where two or more writings are executed contemporaneously and refer to and are a part of the same transaction, they will be construed together to ascertain the true agreement of the par-ties. (Steele v. Nelson, 139 Kan. 559, 32 P. 2d 253.)
It has also been held where two instruments are executed by the same parties, at or near the same time, in the course of the same transaction, and concerning the same subject matter, they will be read and construed together, although they do not in terms refer to each other. (Skinner v. Skinner, 126 Kan. 601, 270 Pac. 594; Shepard, Executrix v. John Hancock Mutual Life Ins. Co., 189 Kan. 125,134, 368 P. 2d 19, and cases cited therein.)
Other cases to the same effect are Hudson v. Riley, 104 Kan. 534, 180 Pac. 198, Syl. ¶ 1; Dearborn Motor Credit Corporation v. Neel, 184 Kan. 437, 448, 337 P. 2d 992; and Farmers & Merchants Bank v. Copple, 190 Kan. 170, 174, 373 P. 2d 219.)
An exception to the general rule — that all prior oral negotiations are deemed to be merged in a written agreement — is a unilateral admission, such as an ordinary receipt, or the mere acknowledgment of the receipt of purchase-money in a conveyance, which ordinarily is not conclusive upon the parties as to the consideration stated. But when it appears from the uniting that the statement *33of consideration is contractual, and not merely a matter of recital, it is not open to contradiction by oral proof. (Milich v. Armour, 60 Kan. 229, 56 Pac. 1; Wheeler, Kelly & Hagny Inv. Co. v. Curts, 158 Kan. 312,147 P. 2d 737, and cases cited therein.) Furthermore, parol evidence cannot be admitted, nor will it be received, where it would operate to defeat or destroy the conveyance itself. (Miller v. Edgerton, 38 Kan. 36, 15 Pac. 894.)
In the instant case when the parties were negotiating in the law office of Marion Chipman, who represented Evelyn as her attorney, only U. S. Goff and Perry were involved with Evelyn as parties in the negotiations for the agreement. When the terms were agreed U. S. Goff and Perry Goff went to the office of their attorney, Casey Jones, for the preparation of the necessary written documents to consummate the agreement. Casey Jones testified without contradiction that he prepared the written documents, after talking with Marion Chipman on the telephone, and that Chipman told him what instruments were necessary to consummate the agreement. No mention was made in this conversation between Chipman and Jones concerning any oral promise made by U. S. Goff. In fact, at different times both Clark and Chipman, who were Evelyn’s attorneys, advised Evelyn against entering into an arrangement based upon an oral promise of U. S. Goff to will the Park’s Place to the petitioners. Rut efforts on the part of these attorneys to get this alleged promise of U. S. Goff in writing never materialized.
While the release in question was prepared for the signature of Evelyn only, it did in memorandum form recite the contractual obligations imposed upon U. S. Goff. On this point it is important to remember that the written “RELEASE AND AGREEMENT’ was prepared by U. S. Goff’s attorney at his request. The release recites that U. S. Goff advanced to Perry the sum of $1,000. which he paid to Evelyn, and further advanced $125 to Perry which he paid to the attorneys for Evelyn. This establishes that the money paid by U. S. Goff was a loan to Perry and not consideration passing from U. S. Goff to Evelyn. The consideration passing from U. S. Goff was then recited in the “RELEASE AND AGREEMENT.” U. S. Goff was to release Evelyn and Perry of all their obligations on a note and mortgage dated December 6, 1956, held by U. S. Goff and Mary C. Goff. Fulfillment of this recital is disclosed by the $18,900 note which U. S. Goff canceled by writing “PAID” across the face and giving the date (November 2, 1957) *34over his signature. The release further recited that U. S. Goff assumed and agreed to- pay the Federal Land Bank mortgage in the sum of approximately $7,100. This is definitely a contractual obligation.
All written documents evidencing the agreement between the parties' dovetail perfectly together, and in my opinion, comprise the agreement between the parties. These documents are to be construed together as one written agreement.
Permitting parol testimony to change the consideration flowing from U. S. Goff to Evelyn, consideration which is contractual in nature, flies directly in the face of the cases heretofore cited.
It should be stated at this point that Perry, upon the original purchase of the Parks Place from U. S. Goff and Mary C. Goff, actually paid no cash money. The entire consideration consisted of the Federal Land Bank note and mortgage, which Evelyn and Perry assumed, together with U. S. Goff and his wife, and the note and mortgage for $18,900 given by Evelyn and Perry to U. S. Goff and his wife. On November 2, 1957, when the parties subsequent to the negotiations came to terms, no payment had been made by Evelyn and Perry on the note to U. S. Goff and his wife, and the first payment on the Federal Land Bank note and mortgage had not been made.
It is, therefore, obvious that as of that moment Evelyn and Perry did not have one dime in the Park’s Place. Furthermore, Evelyn’s only interest in the land was an inchoate interest.
Subsequent thereto, however, oil was found, and when the claim herein was filed two wells were producing oil on the Park’s Place.
Another rule of law prevents the admission of evidence to establish the oral agreement alleged to have been made by U. S. Goff on November 2,1957.
The deed from Evelyn and Perry to U. S. Goff purports to convey the title in fee simple to U. S. Goff. Admission of the parol agreement would, in substance, drastically limit and restrict the interest which U. S. Goff is entitled to claim under the deed. In fact, it reduces his interest from that of a fee simple estate to a life estate in the Park’s Place.
In Brungardt v. Smith, 178 Kan. 629, 290 P. 2d 1039, it was held that every conveyance of real estate shall pass all of the estate of the grantor therein, unless the intent to pass a lesser estate shall expressly appear or be necessarily implied in the terms of the grant. (G. S. 1949,67-202.)
*35A deed is usually conclusive as to the description and boundaries of the property conveyed, and the estate or interest conveyed. Parol or extrinsic evidence is not admissible to engraft reservations or limitations on a deed or to defeat or vary express reservations. (Brown v. Parmalee, 130 Kan. 165, 285 Pac. 563; and Brungardt v. Smith, supra; see, also, Miller v. Edgerton, supra; and 32 C. J. S., Evidence, § 916, p. 838.)
On this point the case of In re Estate of Hupp, 177 Kan. 202, 277 P. 2d 618, is quite clearly distinguishable. The estate of Katherine in the Hupp case was quite different and distinct from the 80 acres which was the subject of conveyance to Spangler in settlement of the estate of Frank Hupp.
In the instant case the subject of the oral agreement is the Park’s Place, just as it was the subject of the warranty deed concerning the property settlement in the pending divorce case. The deed reduced to writing the conveyance of the Park’s Place, and the settlement was further evidenced by otiher written documents.
Another rule which applies to the facts in the instant case is that the consideration alleged for an oral agreement may not be attributable to any other relationship between the parties. In other words, it must appear that the consideration claimed in support of the oral promise must have been done or performed because of such promise, and not for other reasons, considerations or relationship.
The petition in the instant case alleges that the “oral agreement to devise was a major consideration and inducement to her [Evelyn] for the purpose of getting her to release her rights in said land and in and to the other property and crops owned by her husband.” This admits the oral promise was only a partial consideration for the deed, and it conflicts with the actual consideration expressed in the deed and release, executed after the oral promise was made. The written evidence of the contract makes no mention of the alleged oral promise.
Many years ago in Long v. Duncan, 10 Kan. 294, the following instruction was said to lay down the true rule:
“2d. — That to take a case of parol contract for the purchase of land out of the operation of the statute of frauds, under the plea of part performance, the alleged contract should be first shown to be clear, definite, and unequivocal in all its terms; and second, the acts of part performance should clearly appear to have been done solely in pursuance of the contract alleged, and solely with a view to such contract being performed.” (p. 297.) (Emphasis added.)
*36The rule applicable to the facts in the instant case is more clearly stated in 49 Am. Jur., Statute of Frauds, § 526, p. 825; and 69 A. L. R. 128,129.
The foregoing rule was restated in substantially the same language in the case of In re Estate of Duncan, 186 Kan. 427, 350 P. 2d 1112, where it is said “the performance must be attributable to the alleged contract as distinguished from some other relationship between the parties.” (p. 433.)
The law in this jurisdiction is well settled that the intention of the parties to a deed must be derived from the language of the deed itself, which cannot be impeached except upon equitable grounds of accident, mistake, fraud and the like, none of which appears in the instant case. (Oaks v. Hill, 182 Kan. 501, 503, 322 P. 2d 814, and cases cited therein.)
It is respectfully submitted the trial court erred in the admission of evidence to establish the parol agreement which is at variance with the written agreement entered into between the parties.
Fatzer, J., joins in the foregoing dissent.