This is strong evidence that there were no "side agreements" between the parties in regard to the sale of the property. In Hoke v. Welsh, 162 Neb. 831, 834-35, 77 N.W.2d 659, 661 (1956), we said: "`[u]pon the execution, delivery, and acceptance of an unambiguous deed, such being the final acts of the parties expressing the terms of their agreement with reference to the subject matter, all prior negotiations and agreements are deemed merged therein, in the absence of a preponderance of evidence clear and convincing in character establishing some recognized exception such as fraud or mistake of fact, and the deed will be held to truly express the intentions of the parties.'" See, also, Beren Corp. v. Spader, 198 Neb. 677, 255 N.W.2d 247 (1977); City of Papillion v. Schram, 204 Neb. 110, 281 N.W.2d 528 (1979).
" In Hoke v. Welsh, 162 Neb. 831, 77 N.W.2d 659, 662 (1956), the court quoted with approval from Texas Company v. Snow, 172 Ark. 1128, 291 S.W. 826 (1927), and said: "* * * Knowledge or notice, however full, of an incumbrance or of a paramount title does not impair the right of recovery upon covenants of warranty, as they are taken for protection and indemnity against known and unknown incumbrances or defects of title."
The rule of merger, stated simply, is that upon delivery and acceptance of an unambiguous deed all prior negotiations and agreements are deemed merged therein. See, Ingraham v. Hunt, 159 Neb. 725, 68 N.W.2d 344 (1955); Beren Corp. v. Spader. 198 Neb. 677, 255 N.W.2d 247 (1977); Hoke v. Welsh, 162 Neb. 831, 77 N.W.2d 659 (1956). However, the doctrine of merger does not apply where there has been fraud or mistake.
In Ingraham v. Hunt, 159 Neb. 725, 68 N.W.2d 344 (1955), it is stated: "Generally, upon the execution, delivery, and acceptance of an unambiguous deed, such being the final acts of the parties expressing the terms of their agreement with reference to the subject matter, all prior negotiations and agreements are deemed merged therein, in the absence of a preponderance of evidence clear and convincing in character establishing some recognized exception such as fraud or mistake of fact, and the deed will be held to truly express the intentions of the parties." See, also, Hoke v. Welsh, 162 Neb. 831, 77 N.W.2d 659 (1956). The doctrine of merger, however, was applied in those cases only in situations where the parties to the land contract and the parties to the deed were the same. It does not apply in regard to persons who have no privity of contract.
It is the general rule that for most purposes when a deed is made in execution of a contract of sale, the provisions of the contract are merged in the deed. See Hoke v. Welsh, 162 Neb. 831, 77 N.W.2d 659. There are exceptions to the foregoing general rule.
The general rule is: Since plats are merely a picturization of courses and distances, the statements as to conflicts between monuments and plats apply also to conflicts between the monuments marking a surveyed line and the description thereof in a course and distance description. The monuments prevail over calls for courses and distances. Hoke v. Welsh, 162 Neb. 831, 77 N.W.2d 659. The determination of the issues here rests primarily upon the facts.
The dispute arises as to whether or not a conveyance by lot and block number, as shown by the dedication and plat, conveys the one-half of the abutting alley, or whether or not the reversion of the abutting one-half of the vacated alley creates a separate and distinct tract that must be transferred by separate words of conveyance. In Hoke v. Welsh, 162 Neb. 831, 77 N.W.2d 659, this court said: "The general rule has been stated as follows: `Where a map, plat, plan, or survey of the premises conveyed is adequately referred to in a deed, usually it is to be considered as a part of the latter instrument and construed in connection therewith; and the courses, distances, or other particulars which appear on such map, plat, plan, or survey, are, as a general rule, to be considered as the true, or part of the true, description of the land conveyed.' * * * Applying the foregoing rule, it is clear that the purport of the deed was to convey the title to the lots and one-half of the vacated streets and alleys to the purchaser as they are shown on the plat of the original Town of Ogallala." In the Hoke case, the deed specifically followed the lot and block description with the additional words "now vacated.
In the case at bar, however, plaintiffs brought an action for damages based on fraud and it has been held that where fraud as to the quantity of land sold is alleged and proven, there may be a recovery notwithstanding the sale was in gross. Miller v. Conn, 193 Iowa 458, 186 N.W. 902; Thomas v. Beebe, 25 N.Y. 244; Hoke v. Welsh, 162 Neb. 831, 77 N.W.2d 659. The case of Hoke v. Welsh, supra, is particularly persuasive.
True it is, as he contends, that even though a grantee knows at the time of conveyance that his grantor's title is defective or that the grantor had no title to part of the land, it does not generally affect the grantee's right of recovery for a breach of warranty. Hoke v. Welsh, 162 Neb. 831, 77 N.W.2d 659 (1956); and see: 21 C.J.S. 896, 898, Covenants. This, however, does not prevent a grantee from being estopped to assert his claim, as occurred here. See: Kutz v. McCune, 22 Wis. 628, 99 Am. Dec. 85 (1868); 21 C.J.S. 988, supra, and 14 Am. Jur. 552, Covenants, Conditions and Restrictions. In Eriksen v. Whitescarver, 57 Colo. 409, 142 Pac. 413 (1914), a case where a defendant had prior knowledge of an irrigation ditch on the land conveyed, the court applied the above rule; however, it acknowledged that a contrary result could occur when in addition to the notice or knowledge "* * * at least something in the transaction * * * (disclosed) that the parties intended the incumbrance should be excluded from the operation of this covenant."
I. The Court below erred in holding that the phrase "Maywood Shopping Center" was ambiguous and in admitting parol evidence to determine its meaning. Ashcot, Inc. v. Texas Eastern Transmission Corp., 241 Miss. 392, 129 So.2d 405; Barker v. Lashbrook, 128 Kan. 595, 279 P. 12; Bishop v. Johnson (Fla.), 100 So.2d 817; Bradstreet v. Bradstreet (Maine), 180 A.2d 459; Cavery v. Curtis, 257 Pa. 575, 101 A. 853; Food Fair Stores, Inc. v. Kline, 396 Pa. 397, 152 A.2d 661; Ford v. Ward (Ala.), 130 So.2d 380; Garraway v. Bryant, 224 Miss. 459, 80 So.2d 59, 61 A.L.R. 2d 1387; Gwinn v. Cleaver (Wash.), 354 P.2d 913; Hoke v. Welsh (Neb.), 77 N.W.2d 659; Howard v. Tomicich, 81 Miss. 703, 33 So. 493; King v. Jones, 199 Miss. 666, 24 So.2d 860; Logan v. California Co., 231 Miss. 836, 97 So.2d 924; Lucas v. Thompson, 240 Miss. 766, 128 So.2d 874; Maryland Trust Co. v. Tulip Realty Co., 153 A.2d 275; Mexico Beach Corp. v. St. Joe Paper Co. (Fla.), 97 So.2d 708; Milam v. Paxton, 160 Miss. 562, 134 So. 171; Miller Cattle Co. v. Francis, 298 P. 631; Missouri Pacific R. Co. v. Littleton (La.), 127 So.2d 271; Perkins v. Jenkins (Maine), 129 A. 4; Rossi v. Douglas (Md.), 100 A.2d 3; Sansing v. Thomas, 211 Miss. 727, 52 So.2d 478; Sibley v. Cramer, 105 Miss. 13, 61 So. 53; Slush v. Foxworth, 146 Miss. 360, 111 So. 841; Stuart v. McCoy, 163 Miss. 551, 141 So. 899; Spencer v. Wiegert (Fla.), 117 So.2d 221; Wahrendorff v. Moore (Fla.), 93 So.2d 720; Westbrook v. Comer (Ga.), 29 S.E.2d 574; Witherspoon v. Campbell, 219 Miss. 640, 69 So.2d 384; Sec. 264, Code 1942; 17 C.J.S., Contracts, Secs. 243, 294 pp. 624, 686; 26 C.J.S., Deeds, 870. II. "Verb