
    William St. John Elliott et al. vs. Hugh Connell, administrator of Kinchen Holliman, deceased.
    Although the rule of law which prohibited the admissibility of parol proof to vary written instruments, in general prevails in chancery, yet where, from mís-tate or fraud, the writing does not truly express the intention of the parties, a court of equity admits parol evidence to carry the intention into effect.
    The lien which is given by statute, upon land sold by an administrator, for the payment of the purchase-money, is not intended for his individual benefit, but for that of the estate; and it may well he doubted, whether any act of.his, short of receiving actual payment, will discharge the lien.
    C., administrator of H., sold according to law, a tract of. land of H.’s estate to T., on a credit of twelve months; T. sold in trust to E. who sold under the trust to IC , who bought with notice of C.’s lien as administrator; T. paid part of the purchase-money when due, and gave a new note for the balance, with different sureties, the note hearing interest on its face at the rate of ten per cent, and expressing that it tvas for a bona fide loan of money: Held, that it was competent to show, by parol, that the true consideration of the note was the unpaid balance of the purchase-money for the land, and not a loan of money.
    C., as administrator, sold land of his intestate to T., on twelve months credit, who gave note with sureties for the amount of the purchase-money, and when it was due, paid part and executed another note, with other sureties for the balance, expressing, on the face of the note, that it was for a bona fide loan of money; T. sold the land to K. who had notice that all the purchase-money to C. was not paid; C. filed his bill as administrator, to subject the land in the hands of K., to the statutory lien : Held, that even if C. were precluded from showing by parol proof the true consideration of the new note given by T., purporting to be for a loan of money, yet the object of the Jnll being to foreclose a statutory mortgage, and the note being but evidence of the amount due on the mortgage, and that amount appearing from other proof, even if that note be excluded, C. had a right to foreclose his lien, for the unpaid balance of the purchase-money.
    On appeal from the decree of the superior court of chancery.
    Hugh Connell, administrator of Kinchen Holliman, deceased, filed his bill in the superior court of chancery, impleading William St. John Elliott, and Hugh M. Keary, Patrick F. Keary, and William Y. Keary; the defendants appeared and demurred to the bill; their demurrer, however, was overruled, when they answered. The facts, as exhibited by the bill, answers, exhibits and proofs, are in substance as follow : The complainant, as administrator, on the 9th of February, 1836, in obedience to an order of the probate court of Wilkinson county, after due notice, sold a tract of land of his intestate to Robert K. Throckmorton, for the sum off4779 50; and made a deed to him for it; whereupon he executed his'note, with William T. Mayes as his surety, payable to the complainant, as administrator, twelve months after date, for that sum; on the 11th of February, 1840, as appears by the testimony of Charles Lancaster, one of the witnesses, Throckmorton had paid of the principal and interest of the note, the sum of $1917 77, and for the balance, he then executed another note, by way of renewal, with M. E. Saunders and William T. Mayes as his sureties, payable twelve months after that date, to the complainant, as “guardian of the minor heirs of Kinchen Holliman, deceased,” for the sum of $4226 49, the note on its face stating that it bore ten per cent, interest until pa,id, being for a bona fide loan of money. The bill stated, and it was in proof, that although this last note expressed on’ its face that it was for money loaned, it was in point of fact, given only in renewal of the balance of the original note; that it was made to bear interest at ten percent, to get that rate of interest and evade the statute of usury; and that it was made payable to the complainant, as guardian, to indicate merely to whom the money was due.
    On the 21st of April, 1840, Throckmorton executed and delivered a deed of trust to William St. John Elliott, as trustee for the benefit of his creditors, including the tract of land in question ; and on the 6th of February, 1841, died insolvent to a large degree. In January, 1842, Elliott, the trustee, sold the land in the mode pointed out by the deed, to the defendants Keary, who were placed in possession and retained it to the time when the bill was filed. Before and at the sale, notice was given to the Kearys, that the land in' controversy had been sold by Connell, as administrator to Throckmorton ; that the greater part of the purchase-money remained unpaid and that the lien given by law upon the land, still existed and would be enforced.
    
      Upon this state of fact, the chancellor decreed in favor of the complainant below, and ordered the administrator’s lien to be enforced ; from which decree this appeal is prosecuted.
    
      Simrall, for appellant.
    The court below erred in overruling the demurrer to the bill of complainant.
    The bill charges that the last note was taken only in renewal of the first, and that the designation, payable to H. Connell, guardian, &c., was only intended to designate to whom the proceeds of the note belonged, and that the expression for “money loaned bona fide, at ten per cent, interest,” was merely inserted as a pretext, to carry that rate of interest, &c. To make the land liable to pay this last note, it must be shown that the consideration of the note is the purchase of the land. And to do this, H. Connell, the payee of the note, alleges a different consideration from that stated on the face of the note, and seeks, by impeaching the contract as reduced to writing, to obtain an equitable remedy. He does not pretend that this note is so written from mistake, from fraud, or from accident, (the only grounds upon which parol testimony is received to contradict a written contract); but he alleges that this note was so framed from design, from concert, and for specific reasons, which he has enumerated.
    Now I maintain that Hugh Connell is estopped from setting up a different consideration from that stated in the body of the note, a fortiori when this consideration to be shown aliunde contradicts the one expressed. 1 Chit, on Bills, 80 ; lb. 161. “ It is now settled that verbal evidence is not admissible to contradict or vary an absolute engagement to pay money on the face of a bill or note; although as between the original parties, evidence may be adduced to establish a defence on the ground of total want of consideration, failure of it, or illegality.” 3 Camp. 57; Preston v. Merceau, 2 W. Bl. 1249; Richards v. Killam, 10 Mass. 244; 7 lb. 518; Howes v. Barker, 3 Johns. 506 ; 2 Stark. Ev. 548; 4 Cow. 427 ; 9 lb. 67; 20 Johns. 338; 1 Mass. 69.
    
      Authorities might be cited to an indefinite extent to prove the general proposition. The particular attention of the court is solicited to the case of Stackpole v. Arnold, 11 Mass. R. 28, where the whole learning upon this subject is examined by Parker, J., both upon principle and authority, and the exceptions to the rule stated. This is, a leading case, and fully sustains our position.
    The cases cited were all decided at common law. Does a different rule prevail in equity? Dale v. Pope, 4 Lit. 166, is directly in point. In this case an'effort was made to be relieved from a judgment on a note, by setting "up by parol, matters which went to destroy the effect of the note. This, say the court, in a well-reasoned opinion, could no more be done in equity than at law, unless a previous foundation had been laid by proper allegations that the writing was made to speak a language different from that intended by the parties, “ as by address, fraud, or mistake.” Does Connell’s bill open the ‘door for the admission of parol testimony by any such allegations? The note is payable to the “ guardian of minor heirs,” &c. not from mistake, accident or fraud; but for a very sensible reason, to designate certainly to whom the proceeds of the note, when collected, should go. The expression, “ money bona fide loaned,” is inserted by design, and with the express view of reserving ten per cent, interest.
    The bill does not then show, upon its face, such a state of facts as would authorize a court of chancery to open this writing.
    If Connell shows, upon his bill, facts which preclude or estop him from the relief sought, then the demurrer was properly interposed.
    2d. We insist that the contract has been so changed, that the lien upon the land has been abandoned or lost. The bill shows that the first note has been cancelled; that the second note is payable to the complainant, not a£ administrator, but as guardian for minors, &c.; that it embodies a totally different consideration from the sale money of land, and that new and additional personal security was taken. The proceeds of this note do not belong to the estate of complainant’s intestate, but to wards, the distributees of this estate. So far as Conbell is concerned, he cannot gainsay the fact that this note is the property of his wards, and he is accountable to them'for it. But his proceedings in the court below, were based upon the hypothesis that this note was part of Holliman1 s estate. The cancelling of the old note, the taking of new security, the insertion of a different consideration, and making it payable to complainant in a different capacity, amounts, it is believed, to a payment of the first note, or at least to an abandonment of the lien on the land.
    I am aware that this court has decided that the simple renewal of a note secured by a deed in trust, does not destroy the collateral security, and cases will be cited by the counsel for appellee to the effect, that the taking of security of a higher nature, on simple contract debt, secured by mortgage, will not dispense with, and discharge the mortgage. Such are the cases in 8 Pick. 522, Watkins v. Hill; 9 Mass. 246, Davis v. Maynard.
    
    But in none of these cases was there such a complete change of every member and constituent of the contract as in the case at bar, and in all of the cases where the mortgage lien has been retained, there has been no difficulty in tracing up the last evidence of the debt to the first, without violating the fixed and settled rules of evidence. In none of the cases was it necessary to contradict the terms and meaning of the evidence of the debt so as to show that the mortgage still follows it as an accidental security, and this feature still distinguishes the case at bar, from any cases that may be cited; that in none of the cases that can be cited, was parol testimony admitted to contradict a writing, the evidence of the debt, so as to prepare the way for the mortgage to take effect. In the case in 9 Mass, the note was merged in the recognizance, and there is no rule which would hinder that fact from being proved, and thereby still pursue the debt to this new shape.
    3d. The complainant presents himself in this unconscientious and inequitable attitude, that he seeks to make his own turpitude, his own violation of law, the foundation of relief in equity. Every litigant who seeks the aid of the conscience of the chancellor must go into court with clean hands. It is rather unusual for a complainant to make his own iniquity the very merits and gravamen of his title to relief.
    4th. The decree is erroneous in calculating interest at eight per cent., whereas no interest should be allowed at all upon the debt, since the bill admits facts which make usury, the effect of which deprives the complainant of all interest.
    Upon this question the case of Morrison v. Helm,, 4 Bibb, 460, is supposed to be conclusive. When this decision was made, the statute of Kentucky on usury avoided the whole contract. Helm, the lender, admitted facts, which amounted to usury, and the court “decided that he could not be relievedi in any way upon a contract made contrary to the express provision of the statute.” Apply the principle of this case to the one before the court, and Connell, showing in his bill usury, cannot claim legal interest, when our statute expressly forfeits the interest, &c. See also 3 Bibb, 207, and 1 Fonbl. 25, to the same effect.
    
      John D. Freeman, on same side.
    In addition to the elaborate brief, furnished for the appellee» by Mr. Simrall, it appears to me that the demurrer to the bill of foreclosure should have been sustained in the court below, for want of proper parties. The bill is brought by the administrator alone. He shows, by his bill, that he was ordered by the probate court to sell the land in controversy and divide the proceeds of the sale among the heirs. There were no debts to pay, the estate was fully administered,' and the land was sold not to pay debts, but for the purpose of division among the heirs. The land was sold and a note given for the proceeds; this note, by order of the court, belonged to the heirs; jt was distributed by order of the court to them, and the administrator had no right to sue for it. The suit can only’ be maintained by the heirs. Edwards on Parties, 131, 165; 3 Russ. C. R. 476. If the heirs were infants, they should sue by next friend, if not, they should sue in person.
    
      The bill shows that the original note was partly paid and wholly cancelled, and a new note for the balance given, with additional security given to the guardian of the minor heirs of Holliman. If the legal title to the note was in the guardian, how can the administrator sue for it?
    All persons who have a legal interest in the mortgage, as well as those who have an equitable interest therein, are necessary parties to a bill to foreclose. There can be no redemption or foreclosure, unless all the persons, entitled to the whole mortgage money, are before the court. Story Eq. PI. 184. In this case the complainant has neither a legal or equitable interest in the mortgage. The mortgage sought to be enforced, consists of a statutory lien for purchase-money of the land. The purchase-money has been distributed, by order of court, to the heirs of Hol-liman, the note for the balance due is given to the guardian of the heirs, and consequently the heirs must be made parties to the bill, or rather the bill must be dismissed for want of parties.
    "Whenever the want of proper parties appears on the face of the bill, it constitutes a good cause of demurrer. If the parties not brought before the court are necessary and proper to the decree to be made under the bill, the exception may also be insisted .«eo in the answer or at the hearing. Story Eq. PI. 414, 415.
    If the administrator recovers in this suit, it will be no bar to another bill to foreclose by the heirs. The personal representative of a deceased person is not a proper party when the. property in dispute does not vest in him. Story Eq. PI. 160, sec. 170.
    
      George H. Gordon, for appellee.
    Upon the facts there is only one principal question presented for the decision of the court, and that is, whether the lien is retained and now exists upon this tract of land in favor of the parties interested in obtaining the balance of the purchase-money for which it was sold, so that it can be made liable for its payment. We insist that by virtue of our statute, (How. & Hutch. Dig. 417, s. 110,) a special lien is retained on all property of any decedent or ward, sold on credit under the order of the probate court, and that such property so sold is held arid remains subject and liable for the payment of the purchase-money and all interest and cost thereon, no matter who may have the possession of it, until full payment of such purchase-money is made, in preference of any other claim or claims whatever against the purchaser of the property at such sale, or his assigns: The statute is explicit, and I apprehend that no act of the administrator or guardián could discharge the lien created under it, except an actual receipt of the amount of money for which the property was sold. Such lien is a security raised in favor of those interested in the estate; the statute does not confer a right in favor of the administrator individually, and certainly no improvident act of his could so far affect the rights of those actually interested in the proceeds of the sale, as to destroy those rights. Barnes v. McGee, 1 S. & M. 208, 219, 220; 2 lb. 687, 695. Actual payment of the debt to the administrator for the estate, • would be a legal discharge of the lien, and nothing else. 1 S. & M. 220. I conceive then, under the statute referred to, that the only legitimate inquiry in reference to such discharge, is, “has the debt been .actually paid to the,estate?” If not, the property remains liable, and will be held subject to its payment. It is contended, however, in this case, that as the original note has been partly paid, and a new note taken for the balance, with additional security, that it amounts to a payment and waiver of the lien. This position, we think, cannot be maintained. Because in the section of the act creating this lien upon the property sold, it is expressly declared, that the property shall be liable to the payment of the debt, in the samej manner as if a mortgage had been taken to secure the payment; arid we hold it to be a well-established rule of law, that even in a case where an ordinary mortgage has been given to secure a debt, which is evidenced by a promissory note, that the giving' up the note to the mortgagor, and taking a new note-in renewal, will not operate as a waiver of the lien created by the mortgage, unless it is expressly agreed by the parties that it is to have that effect. Watkins v. Hill, 8 Pick. R. 522; 1 Johns. Ch. R. 309; 1 Pow. on Mort. 145, n. 1; lb. 354, n. P; 3 lb. 1062, n. b. Nor will the changing the nature of the debt, and giving up the note secured by the mortgage, by making it a debt of higher character, operate as a waiver. Davis v. Maynard, 9 Mass. R. 242. In this case the mortgagee, some time after the note secured by the mortgage was due, took from the mortgagor a recognizance, “in lieu of the note,” and the note was given up, thus entirely changing the nature of the security. Under this state of the case, it was strenuously insisted, that the taking of higher security for the debt, was a satisfaction of the note, and it being discharged, the mortgage, which was collateral to it, was discharged also; but the court, in delivering their opinion, say : “On the point, whether the mortgage was discharged by the recognizance taken in lieu of the note, it is our opinion that the recognizance had not that operation; the mortgage and the note were two distinct securities; nothing but payment of the debt will discharge the mortgage.” In fact, it seems to be now settled, that no change of the nature of the debt secured by the mortgage will discharge the lien ; nothing but actual payment will release it, unless it be understood, by the parties making such change, that the mortgage lien is to be discharged; for in the case of Davis v. Maynard, above recited, the court say, that “ nothing but payment of the debt will discharge the mortgage.” This position (they say) is grounded on the words of the condition of the mortgage, which always are, — if the money be paid, then the note or bond, as well as the mortgage deed, shall be void, otherwise to remain in full force. “ By the terms of the contract, nothing blit payment is to avoid it.” But independently of this view taken of the nature of a-mortgage security, by the supreme court of Massachusetts, (which is believed to be strictly correct upon well settled principles of law,) we insist that the language used in our statute referred to, to wit, that the property shall be held and remain subject and liable to the payment of the sum or sums for which it was sold, and interest and cost thereon in preference, &c., fully sustains the position we maintain; for no one will contend, that the taking or renewing a note for a debt created by the sale of property, no matter with what kind of security, would be an actual payment of it; it could be regarded in no other light than a mere security for the debt, no matter what shape it was put in, or how many names might be put on the paper. Thus then, whilst we do not deny that there are cases where a vendor of real estate, upon an ordinary sale, may, under certain circumstances, lose his lien given by law for the purchase-money, without actual payment, yet we conceive it would be a very extraordinary case indeed, in which a mortgagee could be made to lose his lien upon the mortgage premises without his consént or actual payment, (if the mortgagor had a clear title when he executed the mortgage,) and we insist that under our statute, retaining a lien on property sold by an administrator or guardian on credit, by order of the probate court, it is equally clear that such lien can only be discharged by actual payment, or by the consent of the parties beneficially interested, and that no act of the administrator or guardian, in changing or renewing the notes given for property sold at their sales, can in any way discharge or affect the lien thus retained upon the property sold. It is urged, however, by the defendants below, in this case, that as the note taken in renewal of the balance of the original note given for the purchase-money of the land in question, is made payable to “ Hugh Connell, guardian of the minor heirs of Kin-chen Plolliman, deceased,” and expresses upon its face, to be given “ for money bona fide loaned,” that the complainant cannot be permitted to prove, as a matter of fact, that said note was given only in continuation of the balance of said purchase-money of said land, which remained unpaid ; or in other words, that complainant cannot be allowed to prove any fact different from that which appears upon the face of the note ; and it is insisted, that the court below erred in overruling the exceptions taken.to the 3d and 4th interrogatories and answers thereto of Charles, Lancaster, a witness, which go directly to prove that the note marked E, in complainant’s bill, was in fact given in continuation of the time of payment of the balance owing of the purchase-money of said tract of land. ' By reference to the bill and exhibits filed in the cause, it will be perceived that we do not base our right of recovery upon the note marked E, itself, but we rely upon the fact that the amount expressed in that note, is the balance of the unpaid purchase-money of said land, for the payment of which we contend the statutory lien remains perfect. The testimony of the witness, Lancaster, excepted to, is offered in connection with the other evidence to establish the fact that there was that amount of the original purchase-money due .and unpaid, and that this note was given only in renewal or continuation of the time of payment of such balance of said purchase-money. We do not pretend to question the well-settled rule of law, that parol evidence is inadmissible to contradict or vary the terms of a written contract, in a case where that rule can be properly applied. , But it certainly cannot be seriously contended, that although a note expresses upon its face to be given for money bona fide loaned, that it may not be proved by parol that it was in truth given for property sold which was unsound, &c. This principle is so familiar to the profession, that it is deemed unnecessary to refer to authorities on the subject. Yet, if the position assumed and urged by the counsel for the appellants, in the case at bar, be correct, every note which expresses upon its face to be for money loaned, would have to stand good for that, although it might have been given for some other consideration, which would materially affect the contract, if it were allowed to b.e proved by parol. But we again repeat that this note marked E, in the complainant’s bill, is of no consequence in maintaining the position we have assumed, except so far as it forms a part of the evidence to establish the amount of the unpaid balance of the original purchase-money of the tract of land in question, upon which we claim the statutory lien for its payment. It is further urged by the defendants below, that the administrator, on taking the note marked E, having taken additional security on it, there can be no necessity for resorting to the lien, retained upon the land, by virtue of the statute to enforce payment, and that it would be unjust to do so, as the land has been sold to a third person, and is now out of the possession of the original purchaser. But upon examination, it will be perceived that that position cannot be maintained. In the case of 
      Smith v. Everly, decided by this court, (4 How. R. 178,) it was insisted, that giving an injunction bond with security, was a discharge of the lien, created by the original judgment; but the court, in delivering their opinion in that case, say : “Was the judge below bound to unloose the hold which the law gave them, (the plaintiffs in the original judgments) because they had a remedy against the secuíuties 1 We think not; ” and then referring to the case of Rieves v. Johnson, decided by the supreme court of New Jersey, (7 Halst. R. 30) which is conclusive on that point. Furthermore, as it is clearly proved that the purchasers, now in possession of said land, had actual notice of this statutory lien upon it, at the time they purchased, and it having been sold to them subject to such lien, it is believed that there is no room to doubt but that said lien is still perfect against it. A purchaser, with notice of a prior equity, holds subject to that equity. 3 Bibb R. 204; 1 Munf. R. 3S; 3 Henn. & Munf. 316; Stewart v. Ives, 1 S. & M. 197. A purchaser, who takes a legal conveyance, with notice of an outstanding equity, is in no better situation than the grantor was. Litt. Sel. Cas. 412. It has been often held, even in cases of ordinary sales of land, that if a third person purchases it, with notice of the original vendor’s lien, such lien will remain good against such purchaser with notice; 15 Yes. Ch. R. 347, 349; Mont, on Lien, 88, 89; 3 B. & P. 181, 183; 3 Pow. on Mort. 1062, (n. a); and it is now well settled in equity, that in cases of ordinary sales of land, the vendor’s lien is retained unless it be shown that the lien is expressly intended to be waived by some act of the parties, expressive of that intention. Mont, on Lien, 88, 89; 1 Madd. R. 196; 1 Johns. Ch. R. 309. And the lien will remain good in equity, although a receipt of full,payment be indorsed on.the conveyance or ‘inortgage, if it can be shown that not any or a part only has been in reality received. 3 Pow. on Mort. 1062, s. 2; and see particularly 1 Pow. on Mort. 354, n. P., and Mont, on Lien, 88.
    It is thought, by the counsel, that the demurrer to the bill ought to have been sustained for the want of proper parties. The demurrer admits all the facts set forth in the bill. It is said, •by the*counsel, that complainant, as the administrator of Hol-liman, w.as ordered by the probate court to sell the land and divide the “proceeds ” among the heirs. This is true, but I am at a loss to perceive anything remarkable in thát.' I imagine the court did not mean, by this order, that the administrator should divide the “proceeds ” of this sale, thus directed to be made by him, as such administrator, among the heirs, until he realized them. It is further said by the counsel, that the estate of Holliman was fully administered and closed, and that the heirs could only sue for the enforcement of the lien. The bill states and shows directly the contrary. It shows that Connell was not only the administrator of said Holliman’s estate, but that he instituted this suit in the court below as such administrator for the recovery of the balance of the purchase-money, for which he had sold the land in that cháracter. The heirs cannot sue for a debt owing to the estate whilst there is administration upon it. This is clearly the law, and has been recognized by this court.
    Upon the sale of land by an administrator, under the order of the probate court, the uproceeds” of the sale tlecome assets in his hands, for the-purposes pointed out bylaw, and he is the proper person to collect them, being the legal representative of the decedent. The assets of the estate in fact belong to him for the purpose of carrying into effect the objects of his'appointment as administrator. But it is said, by the counsel, that the land was sold and a note given for the “proceeds.” This is true. He further says, “ this note, by order of the court, belonged to the heirs; it was distributed by order of the court to them, and the administrator had no right to sue for it.” This is not true. The order does not direct the note to be distributed, but the “proceeds;” and I am not aware of any power the probate court has to order the choses in action of an estate to be distributed among the heirs, nor do I know of any case where it has been done. The note referred to was taken by Connell upon the sale of the land by him, under the order of the court, as the administrator of Holliman, and I maintain that the administrator alone has the right to sue for it. The court is respectfully referred to the bill of complainant, and the exhibits therewith, for a clear refutation of the positions assumed by the counsel in his supplemental argument.
    Simrall, in reply.
    The counsel for the appellee insists, that- if the principle upon whicfi we insist that parol evidence ought not to be admitted, to vary and contradict the note (E,) (the second note,) be established, that then no instrument of writing can be disputed or called in question by such testimony. Our position and argument would lead to no such consequences. In the case of the usurious note, referred to by the opposite counsel, we agree with him, that such a note can be canvassed, and that parol testimony can be given by the defendant, to show the true character of the note; and I will go further and say, that in all contracts prohibited by statutes, the defendant is permitted to show that they are frauds upon the statutes, however their real object may be disguised by the terms and language in which they are written. This is to make the statutes operative. But I have seen no case yet where a complainant has been assisted by a court of chancery in carrying into effect an illegal contract; to do so, would be to make the court the handmaid of iniquity — cooperate with complainants in the violation of law. How is the case before the court ? The bill charges, substantially, that the note E is the renewal of the balance of a note given for the purchase-money of the land; and reiterates, in different shapes, the allegation, that the consideration of the note E is the purchase-money of the land, the balance of it; and in order to prepare the way for these statements, it alleges, in substance, that the expressions of “money bona fide loaned, &c. at ten per cent, interest,” &c., were added to give color to reserve usury, &c.; “ payable to H. Connell, guardian,” &c. to indicate to whom the proceeds belonged.
    The principle for which I contend, would permit the maker of this note, and Saunders, Mayes, &c. and strangers, to show by, parol, that it was intended as a fraud upon the statute of usury. But Connell cannot be permitted to do so, for the purpose of relief, &c.
    
      I think the rule, so as to embrace every class of cases, may be stated thus : Where fraud, accident, or mistake enters into the written contract, either party may show it by parol. When the contract is against public policy, or statutes, the defendant is permitted, by way of defence, to show the true nature and consideration of the contract by parol.
    But it is said by the opposite counsel, that he does not rely for relief upon the note E, but only makes use of that note, as part of his testimony, to show the amount of purchase-money due. If the note E is evidence of anything, it is of its contents, and nothing else. But the complainant proposed to impeach, by other testimony, the truthfulness of this evidence. Was that allowable ? But if he proposes to use it only collaterally, do not the same objections which we have already urged to it, apply with equal force?
    So far as Connell is concerned, the note has- been paid. Suppose the distributees were insisting for a division of this estate, would not the facts in the record compel the probate court to regard the money as in fact paid to the administrator, Connell ? In such proceeding, could Connell gainsay the fact, that the money belonged to the heirs ? It is shown in the record, that if the securities on the note should turn out to be insolvent, that then the administrator himself, and his sureties, are perfectly good to save the heirs from loss, if there has been a breach of trust; and it is submitted, that from all the facts in the cause the equity is, that the land is released, and those interested in the estate have their remedy over against the administrator. The question would present more difficulty, if the distributees were complainants, and attempting to make liable the land. But it is confidently believed the administrator has abandoned the lien, and elected to treat the original note as paid; and having done so, it is now too late for him to attempt to nullify his own act. It is not pretended in the bill, that the sureties on the note are insolvent, and it is abundantly proved that Connell, and his sureties in his administration bond, are worth over 150,000.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

The complainant, as the administrator of Holliman, sold a tract of land, which was purchased by Throckmorton, who conveyed in trust to Elliott, who sold under the deed of trust to the other respondents. The sale by Connell was made on a credit of twelve months, and after the purchase-money became due, he received part of it, and gave indulgence for the balance to Throckmorton, executing a new note, with different sureties, made payable to himself, as guardian of the minor heirs of Holliman, and purporting to have been given for a bona fide loan of money, bearing ten per cent, interest. The bill alleges that the note was made payable to the complainant, as guardian, merely for the purpose of designating the beneficiaries, and that it was expressed to be for a loan of money, in order to entitle the complainant to ten per cent, interest; but that in fact it was taken for the balance due on the sale of the land, and for no other consideration. The defendants are charged with a notice of the lien, and a witness testified that he informed them that Connell claimed a lien upon the land before they purchased at the trustee’s sale.

The ground mainly relied, on in the defence is, that it is incompetent for Connell, by parol evidence, to vary the character of the note, by showing that the land was the consideration, when the note, on its face, expresses the consideration to have been money loaned, and hence that his proof fails. The proof establishes, with sufficient certainty, that the note was given in renewal of the original note.

The statute gives administrators a lien on land sold by them, for the security and benefit of the estate, not for their individual benefit; and it may well be doubted whether an administrator can do any act, short of receiving actual payment, which will discharge the lien. The rights of the estate, or of the distributees, must be looked to, rather than the rights of the administrator, who is but the legal agent through whom the lien is to be enforced.

The rule of law, in regard to the admissibility of parol proof, to vary written instruments, is such as it has been stated to be by counsel ; and it applies to promissory notes as well as to other instruments. 3. Phil. Ev. 1458, n. 976. And although in general the same rule prevails in chancery, yet it is there applied with some modifications. That court carries out the intentions of parties, and if a written instrument does not, either from mistake or fraud, truly express the intention of the parties, then parol evidence is admissible, to give it its proper effect, according to their intention. The heirs of Holliman are the real parties to this transaction. Suppose they had filed this bill, as they might have done, is it not clear that a court of chancery would have permitted them to introduce parol proof, to show the consideration of the second note 1 They are the mortgagees, and any change in the contract which would, in effect, discharge their lien without their consent, would operate as a fraud upon their rights, and thus open the door to have the transaction explained by parol.

But let it be supposed that it was incompetent for the complainant to prove by parol, a different consideration from that which is expressed in the second note exhibited, and that it was really given, as the respondents contend, for money loaned, would that accomplish the respondents’ object 1 The case would then stand divested of the feature given to it by that note. The complainant alleges that he sold and conveyed the land to Throckmorton, for so much money, taking'his note with security, which note is also made an exhibit. He also alleges, that but a small part of the purchase-money has been paid. The respondents denied this, and aver that the whole has been paid. The complainant proves that he,sold the land for the sum alleged, to Throckmorton, who gave the note which is appended to the deposition, with sundry credits indorsed. Charles Lancaster, a witness, made a calculation of the amount due on the note, on the 11th of February, 1840, when Throckmorton expressed his gratification at being able to get indulgence for the balance due. The land was sold at public sale, in pursuance of an order of court, and the sale returned to the court. On this state of facts, the lien created by law attached, and the respondents purchased with notice. The complainant thus shows enough, without the disputed note, to entitle him to a decree. He shows that-the land was sold in, such a manner, as to create the lien for the purchase-money, a part of which is still due. This proceeding is not founded on the note but on the statutory mortgage, given by law to secure the debt, and whilst any part of the debt remains, the lien exists. The note which has been so much contested, is but a matter of evidence, and the case is sufficiently complete without it. , The decree is therefore affirmed.  