
    BERTHOLE vs. MACE.
    Appeal from thecourt of the parish and city of New-Orleans.
    The plaintiff solda tract of land to the de- fendant, the consideration of which was stated in the deed to be one thousand dollars, and to have been paid. The petition alledged that, notwithstanding this enunciation of the payment of the consideration, one hundred dollars only were paid&emdash;the exception de non numeratá pecuniâ, was not renounced, and the petition concluded that the defendant be decreed to pay the remaining nine hundred dollars.
    
      The defendantmay avail himself of his own answer to an interrogatory, put to him by the plaintiff
    Although the vendoravails himself of the East'n District. June, exception de non numerata pecunia, the vendee is not at liberty to shew by parol evi- dence that the consideration of the sale, is not that which is expressed in the deed.
    East'n District.
    June,1818.
    The vendec may avail him- self of any pa- rol evidence, introduced by the vendor, to show that the sale was a simu&emdash; lated one, al- though he could not have introduced such evidence.
    The following interrogatory, to be answered on oath, was put to the defendant: Have you paid the sum of one thousand dollars, for the premises, or have you only paid one hundred dollars, or what part of the purchase money have you paid?
    The answer sets forth that the premise were actually and bona fide purchased for one hun- dred dollars only : but, in order to enable the defendant to dispose of the land on more ad- vantageous terms, one thousand dollars were mentioned as its real price, at the request of the defendant; and the plaintiff had not then, nor has she now, any just claim on the defendant, for one cent more. The answer further states, that the sale of the land was a fraud, practised by the plaintiff, in order to extort money from the defendant, inasmuchas the land is not, not ever has been, in her possession, nor has the same ever, of right, belonged to her, nor has she ever put him in possession; neither is it, nor has it ever been, in her power so to do.
    In answer to the interrogatory, the defendant swore-" The purchase was made for one hundred dollars, and no more, which sum I actually paid, and she, the present plaintiff received, in full satisfaction, at the time of signing the contract of sale. It was considered, both by her and myself, at the time, to be the whole of the purchase money : but, if I should be able to sell the said land for a good or large price, which I verily believe to be the words mentioned, then, and in that case, I was under a verbal promise to make her a donation : but, even that was, by her and myself, at the time, considered at my own option and free will.”
    By agreement of the counsel, the depositions and bill of exceptions, which came up with the record, were to be taken as a statement of facts.
    George Pollock, a witness for the plaintiff,
    deposed, that he has a perfect knowledge and understanding of the transaction. He believes the defendant was influenced throughout the whole of it by motives of the purest humanity. The deponent undertook, several times, to procure to the plaintiff the possession of the land. She consulted him on the propriety of empowering several persons to procure it for her; but he dissuaded her; the persons she named appearing to him trust-worthy. Afterwards she informed him the defendant was going to under take it; and when they came to the office to execute the deed, he understood and believed the defendant required it, in order that he might not be controled or overruled by the fickleness or caprice of the plaintiff. The deed was accordingly executed, and one hundred dollars paid down by the defendant, which the deponen understood were advanced to relieve the plaintiff's necessities. The impression on the deponent's mind was, and is, that, should the defendant obtain a greater price, he was, to account for the overplus ; but there was no written agreement to that effect. The deponent under- stood this from the conversation between the parties, and was confirmed in the opinion that the defendant contemplated no advantage to himself from the circumstance of his having been requested by the defendant to inform the plaintiff's counsel he was ready to re-convey the land, on being reimbursed his disburse- ments. The plaintiff was not in possession of the land.
    Croswell deposed, he was present at the execution of thecdeed, and heard the defendant say, in the presence of the plaintiff and George Pollock, he had purchased the land. He spoke in English, a language not understood by the plaintiff.
    Quarles deposed that, before the execution of the deed, he heard the plaintiff acknowledge to the defendant that she had sold the land to him, but did not hear any price mentioned by her. He afterwards heard the defendant telling the plaintiff he had given her one hundred dollars ; but, if he obtained possession of the land, he would give her nine hundred or one thousand dollars.
    On the following question being put to Cros-well, by the plaintiff’s attorney-“Was there any verbal agreement or sale, made by you, With the plaintiff, on which to base a sale of the land in question ; and, if so, what sum of money had you agreed to give for it ?”-the defendant objected, and the objection being sustained; the plaintiff excepted to the opinion of the court.
    
      Moreau, for the plaintiff.
    The defendants counsel contended below, that no interrogatory on facts and articles, tending to prove the contrary of what is contained in an act, can be put and that, consequently, he was not bound to an answer the interrogatory in the petition, by which he was called upon to declare whether he had not paid a less sum than that mentioned, as the consideration of the purchase.
    It is true, that the law provides, that no pa-rol evidence shall be admitted against or beyond wha is contained in the acts, nor on what may have been said before, or at the time, of ma- king such acts, or since. Code Civ. 310, art. 242.
    But itis manifest, from the very words of the law, that the prohibition had no other object than the exclusion of testimonial proof. The reason of the law is, that from the corruption of manners and the frequency of the subornation of witnesses, that mode of proof is always admitted with caution, and never permitted to destroy the faith which is due to the act. But, do the same objections lie to the confession of the party, to whom the oath is deferred ? Surely not. First, because the law speaks only of testimonial proof: secondly, nothing can be less suspicious than the declaration made by one of the parties, against his own interest, in a case in which the oath has been deferred to him, and he has, in some manner, been made his own judge. So the judiciary confession has always been considered as the strongest of all proofs, and as dispensing the adverse party from producing any other proof of the fact admitted. 2 Pothier, Obligations, n, 798.
    The law is so far from excluding; this mode of proof, in the case of an act, that it authorizes it, as the only means of discovering truth, especially in cases of fraud and simulation. Judicial confession, says Pothier, is the declaration which one of the parties makes before the judge, as to a fact, upon which he is interrogated. Id. Ib. 797.
    Judicial confession is there defined : the de- claration made before the judge, by the party himself, or the person having his power for that purpose. It may be made in three different ways : 1. by writings produced by the party or his counsel-2. by the declarations or answers of the party, before the judge, either on an inter- rogatory on facts or articles, or in open court- 3. by the answers or declarations of the counsel of the party. Desquiron, Testimonial Proof, 17 & 18, n. 20. The author adds, immediately after, “ judicial confession forms a full proof, against the person who made it: and it is evi- dent that, if Marius demands of me ten thou sand francs, and I admit the receipt of them, there cannot any longer he any contestation : since yielding to the voice of truth, I have been my own judge."
    
      The force of this proof is such, that it may even destroy the faith due to what is contained in the most authentic act. For this reason, the oath may be deferred to either of the parties, on any fact whatever. The decisory oath may be defined, says Pothier, in every kind of con-testation, and in every civil case. In petitory as well as in possessory actions, in real as well as in personal. Jusjurandum & ad pecunias & ad omnes res locum. L. 34, ff. de jurisp. 2 Pothier on oblig. n. 819.
    The decisory oath may be deferred, in every kind of decision whatever. Desquiron, 76, n. 147.
    Our statute holds the same language, with regard to interrogatories on facts and articles. 1805, 26, sect. 7, 8, 9.
    Every argument that the defendant’s counsel may use, in this respect, must yield to the decision in the case of Greffin’s ex. vs. Lopez, 5 Martin, 145, in which it was decided, that testimonial proof could be admitted in the case of the simulation of a notarial act.
    Lastly, the interrogatory having been answer ed, the defendant cannot now contest the plaintiff's right to put it.
    The act of sale does not state that the one thousand dollars were paid in the presence of the notary, nor that the vendor renounced the exception de non nunmerata pecunia. In such, a case he may, within two years, require the vendee to make proof of the alledged payment. 2 Febrero, Contratos, ch. 4, § 8, n. 163. The defendant was then bound to prove this pay- ment: a fortiori, was the plaintiff entitled to interrogate him, and receive his sworn answer.
    The defendant, being thus bound to prove this payment, his declaration on oath, is an in- complete proof, in this respect, on his part-1, because it cannot be binding on the plaintiff, unless she evidences an intention to use it, at least for that part in which he declares that the consideration of the sale was only one hundred dollars-2. because this declaration was, in some manner, destroyed by the witnesses which he has himself introduced.
    The answeredis not categorical, He was ask- ed whether he had paid one hundred or one thousand dollars, as the consideration of money expressed in the deed: he answers he paid one hundred dollars only, because the sale was made in consideration of that sum only.
    The courtwill determine whether, in this case, the defendant did not overleap the limits fixed by the law, and whether the plaintiff was bound to accept it in toto ; whether she is not is not to be permitted to divide it, inasmuch as it contains matters, foreign to the question propounded.
    The party, wishing to avail himself of the avowals made by the adverse party, in his answer to the interrogatory on facts and articles, must not divide them, but must take them entire. Civ. Code, 317, art. 264. Then he is not bound to take them at all, if he do not wish to avail himself of them.
    The plaintiff in this case is then at liberty to avail herself of the defendant’s answer or not. If no interrogatory had been put, it would have been incumbent on the defendant to have exhibited proof of the actual payment of the one hundred dollars-he is equally bound so to do, if the plaintiff do not avail herself of his answer. Then, the judgment of the inferior court is correct.
    Will it be said that, on the refusal of the plaintiff to avail herself of the answer, with the view of avoiding the inconvenience of taking it entire, the defendant may use it to prove his payment, because the statute says that such an answer shall be received as true, unless disproved by two credible witnesses, or of one credible witness, and strong corroborating circumstances. 1805, ch. 26. sect. 9. Admitting that this question can be solved in the affirmative, the defendant’s answer would not avail him much, because it is improbable and contradicted by the testimony of his own witnesses.
    He answers, he bought the land for one hundred dollars only-but he made a verbal promise to make a present to the vendor, if he obtained a good price for the land-a promise which, he says, he reserved the faculty of disregarding, if he saw fit. Pollock, who heard the conversation of the parties, on this subject, declares, that the sale was made with no other view than to enable the defendant, who was desirous of serving the plaintiff, to sell the land for her account, and that the one hundred dollars paid were only an advance made to relieve her present necessities, and that the overplus, in case of a sale, was to be paid to her. Quarles, a witness for the defendant, far from supporting his answer, deposes he heard him say to the plaintiff he had given her one hundred dollars, and would give her five hundred or one thousand dollars more, if he could get possession of the land-a promise, the defendant informed us, the performance of which depended on his future will.
    
      It does not, therefore, appear by the depositions of these two witnesses, that the sale was made absolutely for one hundred dollars, accompanied by a vague promise of a donation, in case the vendee was pleased to make it.
    The want of verisimilitude, in the account of the transaction, given by the defendant in his answer, would have been apparent, if the parish court had not rejected the proof which the plaintiff was about to make by the introduction of Croswell, by whose testimony she expected to prove that he had offered her five hundred dollars for the premises ; that she had acceded to his offer, and they were going to execute the conveyance, when the defendant interfered, told the plaintiff she was making a bad bargain-that the land was worth a great deal more, and offered her the price mentioned in the deed.
    The plaintiff has taken a bill of exception to the opinion of the court in this respect, and now claims the benefit, if this court be of opinion that the testimony before it is not sufficient to support the judgment of the parish court.
    The defendant rested a considerable part of his defence on a suggestion that the land in question was not really worth much more than the sum of one hundred dollars, which he had paid. She alledged, and offered to prove, that Croswell had offered her five hundred dollars, which she had refused to accept-the court would not permit this. The testimony, in our humble opinion, was relevant, for it went to establish a fact, which would make it improbable that she would have sold for one hundred dollars a tract of land for which she was offered five times that sum. The mode of proof was the best of which the fact was susceptible, viz. the declaration of the very person who had made the offer. It is not easy to imagine on what grounds the parish court rejected it.
    
      Hennen, for the defendant.
    It will be a sufficient answer to all what is said by the plaintiff’s counsel, as to his right of putting interrogatories, and having them answered, that we did answer, and have only a wish to use our answer, and none to withdraw or withhold it.
    To what is asserted on the authority of 2 Febrero, ch. 4, § 8, n. 163, we answer, that a different provision is made by our law. Civ. Code, 304, art. 219, 311, art. 242.
    
    If the defendant’s answer did not appear to the plaintiff sufficiently categorical, she ought to have excepted thereto ; and, having neglected so to do, she must now receive as it is. The defendant, however, had an undoubted right to explain what he said in his answer, otherwise he might have been entrapped by so general a question. Read vs. Bailey, 2 Martin, 60, 296, Marti3neau & al. vs. Carr & al. 3 id. 497.
    The construction given by the plaintiff’s counsel, to the civil code, under which he contends that he is not bound to use the defendant’s answer, may be correct: but it does not follow that, because the answer may not be resorted to by him, the adverse party is precluded from using it, if he please. Every piece of evidence called for or introduced by either party, when once in the possession of the court, is there for the benefit of both parties. Either may use it, and the court may ex officio resort to it.
    The account given by the defendant of the transaction in his answer, will not appear incredible, when it is remembered that one of the plaintiff’s witnesses deposed that the defendant has offered to re-convey the land on receiving his disbursements.
    The defendant has a right to have his answer taken together and undivided. This principle is to he found in every elementary writer on the law of evidence, whether in the civil or the common law.
    It is alledged, that as the contract of sale is for $1000, and only $100 have been paid (though an acknowledgment of the payment in full has been made) the remaining &900 are due. On what principle? It appears distinctly from the record, that the plaintiff agreed, to take $100 for the land, and likewise to state in the sale that the consideration had been 1000 dollars. She does not pretend to say that she has not been paid the actual consideration ; therefore the absolute and dangerous doctrine de non numerata pecunia can have no operation in this case.
    If the plaintiff be entitled to contradict her acknowledgment of the full payment of the consideration, the defendant assuredly is at liberty to shew what the consideration really was, in contradiction to the terms of the conveyance.
    Does the insertion, in the conveyance of a false consideration, or of a consideration different from the real one, vitiate the sale, or bind the purchaser to perform more than he actually agreed for? Certainly not. Upon no principle can such a doctrine be maintained. There is to be found a decision of the court of cassation in France (April 28, 1807, and July 1, 1808) on the 1356 art. of the Napoleon code, of which a literal transcript is in our code, 315, art. 257, on both these points, on which alone, it is apprehended, this case depends. The substance of it is thus expressed by Paillette, Manuel du 
      droit Francais, 327 note on art. 1356. The declaration in court of him to whom an obligation was made, that it has not for its true cause that which is therein expressed, but another lawful one, cannot be divided, nor the obligation thereby avoided, as being without a cause. So here, the confession or answer to interrogatories, which contradicts the consideration expressed in the contract, and states the real one, cannot be divided, nor the contract annulled, as it was founded on a legal consideration.
    On the merits, the case is certainly to be determined in favor of the defendant.
    The parish court did not err, in refusing to allow Croswell to depose whether there was any verbal agreement or sale, between the witness and the plaintiff, as to the premises mentioned in the deed ; and, if so, what sum he had agreed therefor. Verbal agreements for the disposal of real estates are void, and no parol evidence is ever permitted to be given of them, between the parties. Civ. Code, 310, art. 241, 242, A fortiori, no evidence of them can be given, in a suit, in which the parties are not those to the agreement. How can the defendant be affected by an incipient contract, a conversation, between a third person and his vendor ? The question was quite irrelevant and improper, and the pa- rish court acted correctly in refusing to permit the witness to answer it.
   Martin, J.

delivered the opinion of the court. The plaintiff’s counsel contends, that he is at liberty to use the defendant’s interrogatory, and is not bound to have recourse to it. This may be true; but it is equally so, that the defendant has an undoubted right to avail himself of it. It is legal evidence in the cause, and cannot be prevented from being resorted to, by the party who introduced it. A party, who has taken the deposition of a witness, cannot set it aside, when it appears unfavorable to his cause. All legal pieces of evidence on the record may be freely used by either party; not more by the one who introduced it, than by his opponent.

The defendant’s answer to the interrogatories, if used at all, by either party, must be taken together, and cannot be divided.

He had a right to explain his answer, and add thereto such circumstances as might prevent his being entrapped by too general an answer to a too general interrogatory. But his counsel contends that, as the plaintiff can contradict her acknowledgment of full payment, he has the right to shew what the consideration really was, in contradiction of the terms of the conveyance The argument appears plausible; but will not perhaps stand the test of a close examination.

The general rule is contra fulem scripti, testis non adhibitur: to this the legislator has seen fit to introduce an exception, viz. that, when the act does not express that the consideration was paid at the time and in the sight of the notary, the vendee is not liberated by the acknowledgment of the vendor, that the consideration money was previously paid, from the onus probandi, from proving the payment there acknowledged, if sued within two years, unless the right of thus calling for this proof be expressly waved, by a renunciation to the exception de non nu-merata pecunia. It does not necessarily follow, as a consequence of this principle, that when the vendor avails himself of this tion, every thing or any thing else, except the payment, is afloat in the conveyance, and is necessarily to be proven or susceptible of being disproven by parol evidence. Will the vendee be permitted to say that he made no contract at all-that he had long terms of payment, not yet elapsed-that there was a warranty agreed on and not expressed, by the breach of which he is exonerated? When the vendee would avail himself of this right by denying what he had assented to in the deed-or by insisting on clauses not therein mentioned, would not the 1818. vendor claim as a corollary the right of setting afloat any inconvenient averment in the deed? If some, and not all, of these deviations from the letter of the act are to be tolerated, where is the line to be drawn ? Perhaps the safest way is not to allow any exception from the general principle, except the one introduced by the statute, and that the vendee does not derive, as a corollary from the right of the vendor, under the exception de non numerata pecunia, that of gainsaying any thing averred in the act, particularly to alledge and demand to be admitted to prove by parol evidence, that the consideration was a lesser one than that acknowledged in the deed-although he might, perhaps, alledge and prove by parol evidence, that a less sum was received in payment of a larger one, stipulated for; as in case of a deed, expressing a sum of one thousand dollars, agreed to he paid at a future day, parol evidence might be admitted to shew, that afterwards the parties agreed to postpone the payment to a more remote one-or that the obligee received any thing or a less sum, in full payment or discharge of the sum mentioned in the act.

In the present case, if the defence rested on the plea that the consideration of the sale was one hundred and not one thousand dollars, the plaintiff would be entitled to a recovery.

But the defendant has pleaded that the sale was a simulated one; that the consideration was one hundred dollars in cash; but that, in order to enable the defendant to dispose of the premises, on more advantageous terms, one thousand dollars were mentioned, at the request of the defendant, and the plaintiff had not then, nor has she now, any just claim on the defendant for one cent more. In other words, that the contract was a simulated one. There is no doubt that, if the defendant had a counter letter, by which he could make that appear, he might avail himself of this defence; and it is equally clear that he might likewise have the benefit of this defence, if the plaintiff had interrogated him in this respect. It remains for us to consider whether, when the plaintiff shews by parol evidence, a circumstance which, if shewn, by written evidence, would avail, it must not be deemed to have been legally proven. Written evidence is insisted on by law for the protection of him who claims the execution of the deed of his adverse party, lest the latter should destroy, by suborned witnesses, the effect of the agreement, which the former had the precaution to consign in a written act-lest, through the frailty of human memory, even honest witnesses might represent it in a different light; but every one may renounce any benefit which the law secures to him-if he, therefore, will run the risque of probing his adversary’s conscience, he must abide by the result. If, when the parties are at issue on the simulation of an act, the party who claims the execution of it, introduces parol evidence of its simulation, will the court shut their ears? When they are thereby convinced that the act is simulated, can they find the issue against the simulation?

Here the defendant pleaded the simulation of the instrument, viz. that, although the real consideration was one hundred dollars, one thousand dollars were mentioned, to favor some fair view of his-not injurious to the plaintiff. The plaintiff introduces a witness, who deposes that the contract was really a simulated one; that, although it purported to be an absolute sale of the premises for one thousand dollars, the parties intended that the plaintiff should preserve her interest, though she parted with the title, the apparent right in the premises, in order that the defendant, appearing as owner of them, might with more confidence, be treated with, by persons desirous of purchasing-that, after the sale, the plaintiff was to receive the price of the premises, deducting the one hundred advanced, and likewise a proper, remuneration for the defendant’s trouble. Although this testimony does not perfectly accord with that of the defendant’s witnesses, yet all who are sworn declare, that the sale was not an absolute one, as the plaintiff insists upon-that it was simulated. The plaintiff’s main averment, in her petition, is traversed by the defendant, and disproved by the plaintiff’s own witnesses. Will it be said, her witness was introduced to destroy the credit of the defendant’s answer to the interrogatory-and the court must notice what he says for this purpose, and shut their ears, and reject every thing else of which he speaks, even when the plaintiff especially interrogated him thereto? The court thinks that the deposition can neither be withdrawn nor divided.

The court thinks that the parish court erred in rejecting Croswell’s testimony&emdash;the plaintiff liad a right to it, in order to discredit the defendant’s answer. The offer made to and rejected by her of five hundred dollars for the premises, was a circumstance, which lessened the credit to be given to an assertion that she agreed to take one hundred dollars therefor. But we cannot think of remanding the cause for this error, because the rectification of it would not affect the ultimate decision of the cause; as, although it might destroy one of the principal means of defence, it would not help the claim, as it would not support the averment that the sale was absolute and not simulated.

We do not examine the allegation of fraud, because there is no evidence to support it-nor the want of possession in the plaintiff, because that possession was not alledged at the time of the agreement.

It is, therefore, ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed, and that there be judgment for the defendant on the present claim of the plaintiff; reserving, however, to her, her right of action in compelling the defendant to account for the price of the land, when disposed of, allowing all proper deductions, or to re-convey the premises, if any such right she had, before the institution of the present suit: and it is ordered, that the plaintiff and appellee pay all costs above and below.  