scription, because as to those whose description was not thus defective the lien would not be defeated, and thus the answer purporting to be a full defense would only be a partial one, defeating, as it would, only a part of the lien. But, as before observed, the intention and theory of the answer is to defeat the lien by defeating the transfer thereof from Jenkins to Cole by virtue of the deeds. The answer seeks to do that by the introduction of parol evidence to vary and change the legal effect of such deeds.

It was held, in Sage v. Jones, Admr., 47 Ind. 122, "that parol evidence is not admissible to vary, contradict, add to, or take from the terms of a written instrument or its legal effect." Chapman v. Long, 10 Ind. 465.

In Oiler v. Gard, 23 Ind. 212 (217), it is said: "The rule is, that all oral negotiations or stipulations between the parties, which preceded or accompanied the execution of the instrument, are to be regarded as merged in it, and that the latter is to be treated as the exclusive medium of ascertaining the agreement to which the contractors bound themselves."

To the same effect are McClure v. Jeffrey, 8 Ind. 79; Madison, etc., Plank Road Co. v. Stevens, 10 Ind. 1; Orler v. Bodkey, 17 Ind. 600; Woodall v. Greater, 51 Ind. 539.

In 2 Devlin on Deeds, section 837, it is said: "The question is not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed; a most important distinction in all classes of construction, and the disregard of which often leads to erroneous conclusions."

And the same author, in section 840, says: "The intent, when clearly expressed, can not be altered by evidence of extraneous circumstances."

It has often been held by this court that all prior parol

Cole v. Gray et al.

agreements relating to a sale of land are presumed to be merged in the deed, and that such agreements can not be proven to contradict the deed. Turner v. Cool, 23 Ind. 56; Coleman v. Hart, 25 Ind. 256; Cincinnati, etc., R. R. Co. v. Pearce, 28 Ind. 502; Fouty v. Fouty, 34 Ind. 433.

In 7 Am. and Eng. Encyc. of Law, 91, it is said: "When any judgment of any court, or any other judicial or official proceeding, or any contract or grant, or any other disposition of property, has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding, or of the terms of such contract, grant, or other disposition of property, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained. Nor may the contents of any such document be contradicted, altered, added to, or varied by oral evidence."

Then follows numerous well known exceptions to this rule, but the case before us falls within none of them.

One exception to this rule is that a deed absolute on its face may, in equity, be shown, by parol evidence, to have been intended to have the effect of a mortgage merely. The foundation on which this exception rests is that under the circumstances of the deed appearing on its face to be absolute when it was intended to be a mortgage, it is presumed to have been occasioned by mistake or fraud. Conwell v. Evill, 4 Blackf. 67.

Nothing of that kind is claimed here. It is, however, claimed by appellees' learned counsel that the action of Gray in what he calls redeeming the whole of the lots from the tax sale by paying to Jenkins the whole amount due on account of such sale and taking Jenkins' quitclaim deed to himself therefor, is not a contradiction or

Cole v. Gray et ai.

variation of the legal effect of the deeds from Jenkins to Cole, but is simply carrying into effect the oral agreement between Cole and Jenkins by which the latter was to have the right to collect the whole amount from Gray for which all the lots were liable on account of such tax sale.

This argument is unsound, because the right of Jenkins to receive the redemption money on the lots he had deeded to Cole depended entirely on the validity and binding force of his oral agreement with Cole that he might so receive it. If no other contract than the deeds had been made, all must admit that he would not have that right, because it has been held by this court that it is only the last vendee of an invalid tax title that can maintain an action to enforce the lien for the taxes. Morton v. Shortridge, 38 Ind. 492.

Therefore, the acceptance of the redemption money by Jenkins can have no effect on Cole's rights unless the oral agreement was valid as against Cole and as against his deeds. Having been made contemporaneously with such deeds for the purpose of varying their legal effect, as we have seen, such oral agreements were invalid, and did not vary or change the legal effect of the deeds.

Conceding, without deciding, that Gray might redeem from the tax sale by taking a deed from the purchaser thereat, Jenkins, yet, as the cross-complaint to which Gray's answer in confession and avoidance was addressed showed that the deeds were on record in the proper recorder's office, the answer not denying that fact, admitted the same for the purposes of the cross-action. Burns R. S. 1894, section 386; R. S. 1881, section 383.

Gray was, therefore, bound to know when he paid the whole amount of redemption money to Jenkins, that Jenkins had made deeds purporting to convey to Cole a part of the lots sold to Jenkins at tax sale, and he was

Cole v. Gray et al.

bound to know that the legal effect of those deeds was to transfer the lien to Cole for the taxes due on those lots.

We see no esca e from the conclusion that the deeds from Jenkins to Cole vested in the latter the lien for taxes for which the lots embraced in them had been sold, together with the penalties, interest and subsequent tax paid, and that the court below erred in overruling the demurrer to the second paragraph of Gray's answer to the cross-complaint.

This leads to the further conclusion that the court below erred in overruling the motion for a new trial on account of the error in admitting parol evidence to vary the legal effect of the deeds in question.

The judgment is reversed and the cause remanded, with instructions to sustain the motion for a new trial. Filed Nov. 21, 1894.

END OF MAY TERM.

CASES

ARGUED AND DETERMINED

IN THE

Supreme Court of Judicature

OF THE

STATE OF INDIANA,

AT INDIANAPOLIS, NOVEMBER TERM, 1894, IN THE SEV-
ENTY-NINTH YEAR OF THE STATE.

139 4111 155 40

139 411

139

NEGLIGENCE.-Of Fellow Servant.-- Vice-Principal.--Defective Cars Fur-
nished for Shipping Purposes.-Master and Servant.-Personal Injury.
-Where cars furnished to a coal and coke company, for shipping f168
purposes, were defective, in that the brakes were worn out, and in
some instances entirely wanting, the cars being placed on the grade 170
above the "tipple," or place of loading, the defective cars being
placed between other cars, and in moving a car down near to the
"tipple," by servants of the coal and coke company, whose duty it
was to inspect and test the brakes on the cars so as to see that they
could be let down to a point near the "tipple" in safety, a car with de-
fective brakes, and otherwise unsecured, followed at a high rate of
speed, striking the car in charge of said servants, and driving it into
collision with that upon which another servant was engaged in load-
ing, thereby inflicting injuries upon him,-the failure to inspect,
to set brakes, or to block the wheels was negligence in the use of, and
not in the supplying of, instrumentalities, and was consequently the
negligence of fellow servants, and not of vice-principals. The ex-
tent of the coal and coke company's control over the cars was in
the use of them for loading coal, and it was not responsible to the
injured servant, or any one else, for their sufficiency as a means of
transportation.

230

411 5