¶1The right acquired by a vendee of land under a valid executory contract of purchase, is a valuable legal right, capable of being sold and assigned to a subvendee ; and such assignment will constitute a sufficient consideration to support a promise on the part of the purchaser to pay money. It is nothing more than the familiar case of an assignment of a contract to purchase land. — 2 Addison Contr. (Morgan’s Amer. Ed.), § 532; Meyer v. Mitchell, 75 Ala. 475; 1 Amer. & Eng. Encyc. Law, pp. 826-27, 842-43.
¶2The interest acquired in the land by Griel, under the contract of purchase by Moses, -was prima facie a valuable consideration, sufficient to support the promise of the appellees to pay therefor a pecuniary consideration in return.
¶3If there was no fraud in the sale — either by intentional misrepresentation or concealment of some material fact by the vendor, or assignor, Griel — the purchasers, had they been sued for the purchase-money, could not have set up as a defense to the action the defective title of such vendor, by way of a failure of consideration. The contract purports, on its face, to be nothing more than the transfer and assignment by Griel to Lomax and his associates of all of the assignor’s “right, title and interest” in a certain piece of real property, which one Moses had contracted to sell and convey to said Griel, and two other named persons as his co-vendees. There are no words of warranty used, and no covenant of seizin or of future enjoyment is stipulated for in the contract of assignment. Where this is the case, the rule is the same in the sale of an interest in land, as of goods where the vendor is out of possession. The doctrine of caveat emptor applies, and the buyer, having neglected to protect himself by a warranty, in the absence of fraud, will be held by the court to have purchased at his peril. The rule was so stated by Chancellor Kent, in Frost v. Raymond, 2 Caines, 188; s. c., 2 Amer. Dec. 228, decided as far back as 1804, where it is shown that the same principle prevailed in England, and it is now fully supported by authority in this country. In Roswall v. Vaughan, 2 Cro. 196, in the corirt of Exchequer, it was said, “that if one should sell lands wherein another is in possession, or a horse whereof another is possessed, without covenant of warranty for the enjoyment, it is at the peril of him who buys, and not reason that he should have an action by the law, where he did not provide for himself.” Chancellor Kent quotes and approves this case, and also *136cites the case o£ Medina v. Stoughton, 1 Salk. 211, where Lord Holt observed, that “if the seller of goods have not the possession, it behooves the purchaser to take care, caveat emptor, to have an express warranty, or a good title; and so it is in the case of land, whether the seller be in or out of possession, for the seller can not have them without a title, and the buyer is at his peril to see to it.” So, in the case of Bree v. Holbeck, Doug. 654, it was ruled by Lord Mansfield, in the court of King’s Bench, that an action 'would not lie to recover back money paid for the purchase of a mortgage deed, which afterwards turned out to be a forgery, the assignment containing no warranty for the goodness of the title. It is unnecessary that we should indorse the soundness of the latter ruling. The case is entirely distinguishable from that of one who has contracted to sell and convey a particular interest or estate in land, and it turns out that the vendor is unable for want of title to transfer such interest or estate, pursuant to his agreement. The purchaser being evicted, or being out of possession, has been held entitled in such case to recover back the purchase-money, on the ground that the vendor had never transferred to him that which he had agreed to sell, and the vendee had agreed to buy. — -2 Add. on Contr. § 533; Cooper v. Singleton, 70 Amer. Dec. 33; Note, p. 340. The rule may, in other words, be stated to be, that when one purchases an interest in land, whether legal or equitable, and there is no fraud in the sale, and the purchaser has neglected to protect himself by taking covenants, he has no remedy, upon failure of title, either at law, or in a court of equity. — Abbott v. Allen, 2 John. 519; s. c., 7 Amer. Dec. 554, and Note, p. 558; Cullum v. Branch Bank, 4 Ala. 21; s. c., 37 Amer. Dec. 725, and Note, p. 738; Tobin v. Bell, 61 Ala. 125; Strong v. Waddell, 56 Ala. 471; Woodruff v. Bunco, 9 Paige, 443; s. c., 38 Amer. Dec. 559; 2 Addison Contr. § 533.
¶4The sale, or assignment, made by Griel to appellees, of “his right, title and interest” in the land agreed to be sold by Moses to Griel, Matthews and O’Connell, transferred whatever interest the assignor owned without warranty of title, or covenant for future enjoyment.
¶5It is insisted, however, that there was fraud in the sale on the part of Griel — that he intentionally concealed from his vendees the material fact, that joint notes for the purchase-money were to be executed by him and his associates, Matthews and O’Connell, to Moses, as one of the conditions *137o£ the purchase. I£ this be true, and the appellees were induced, to enter into the purchase by reason of a deceit practiced on them, such as constituted a legal fraud, the contract of sale would be void, and the plaintiffs would be entitled to recover the money paid by them under the contract, with interest. The question of fraud vel non is one for the jury, under proper instructions from tbe court.
¶6The effect of the oral evidence offered by the plaintiffs, showing a promise by Griel to return the money in ’ the event Moses failed to make the deed to the plaintiffs, and to guaranty that “it would be all right”, was to vary the legal purport of the written assignment, as we have above 6on-strued it, and such evidence, therefore, was inadmissible, and should have been excluded. While parol declarations, contemporaneous with the contract, are often admissible to explain the consideration, the courts are careful to restrain such evidence to its legitimate office of proving a mere failure, illegality, or other like feature of the consideration; and will not, in the absence of fraud, allow it to “destroy the binding efficacy of the written contract, by varying its effect.” — Long v. Davis, 18 Ala. 801. While parol evidence is always admissible in actions ex delicto, or in defenses based on the tort or deception practiced by a false warranty, fraudulently given by one contracting party for the purpose of inducing the other to consent to the bargain, the rule is different in actions ex contractu, where the question of fraud does not arise. In this class of cases, oral evidence of a warranty, where the written contract contains none, is not admissible, because “its effect is clearly to vary the terms of the written instrument, by superadding another term or condition not expressed by the parties.” — Tabor v. Peters, 74 Ala. 90; s. c., 49 Amer. Rep. 804; 1 Pars. Contr. *589-590; 1 Addison Contr. §629.
¶7Such, in our opinion, was the effect of the testimony of the witnesses Sayre and Lomax, touching the point under consideration. Any oral promise to guarantee his title, made by Griel, prior to or contemporaneously with the delivery of the written contract, must be considered as merged in the writing. And any such promise, made after the delivery of such contract, would be void, unless supported by some new consideration, other than that named in the writing.
¶8What occurred between defendant (Griel) and Matthews, or between Griel and O’Connell, after the execution and *138delivery of the written assignment of Griel’s interest in the land to the plaintiffs, was relevant to show the materiality of the fact, that the original vendees from Moses were to execute joint notes for the purchase-money. If this was true, and Grie'l fraudulently concealed the fact from his vendees, Lomax and associates, the refusal of Matthews and O’Connell to unite with them in consummating the purchase, or to have anything further to do with the transaction, was a fact greatly prejudicial to the plaintiffs, and admissible in evidence to show a miscarriage of the whole enterprise, by reason of the very fact whose existence and concealment is the sole basis of the alleged fraud.
¶9Under these views, the court erred in giving the general affirmative charge requested by the plaintiffs, and in admitting the evidence above pointed out as being irrelevant and illegal.
¶10The demurrer, as shown by the judgment-entry, is taken to the entire complaint, as amended, and not to any particular count supposed to be defective. The complaint contained the common counts, in the form prescribed by the Code; and for this reason there was no error in overruling the demurrer. — Tabler v. Sheffield L. I. & C. Co., 79 Ala. 377; s. c., 58 Amer. Rep. 593.
¶11Reversed and remanded.