
    A. H. Buckels et al. vs. H. W. Cunningham et al.
    The administrators of a deceased person, at the sale of his personal property, proclaimed that the slaves about to be sold were subject to judgment liens, and offered and agreed that, in case they should be seized under the judgments, the sale should be considered as void and the notes of the purchaser be given up ; the slaves accordingly sold for their full value ; in an action brought by the administrators on a note given for the purchase-money, held that the makers of the note might show, under the general issue, that the slaves for the price of which the note was given were taken out of their possession and sold by judgments against the estate, and that the consideration of the note had thus failed.
    The rule of law that parol testimony cannot be heard to vary written agreements, has never been carried so far as to defeat the right to prove a failure of consideration.
    . In error, from the Jefferson circuit court; Hotí. C. C. Cage, judge. '
    Hugh W. Cunningham, and James M. Lazams, in right of his wife, late Sarah May, and his said wife, filed their declaration in assumspit to the May term, 1843, of the Jefferson circuit court, against Abraham H. Buckels and William D. Buckels, upon their joint and several promissory note for $825, dated January 18, 1840, and payable nine months after date to H. W. Cunningham and Sarah May, administrators of estate of David May. The declaration was in the usual form, and contained the common money counts. The defendants pleaded non assumpsit to the declaration, and a special plea to the first count. The special plea alleged that the note in said first count mentioned, was made by defendants to Cunningham and Sarah May, as administrator and administratrix of David May, deceased, to secure the payment of the purchase-money of a negro slave named Maria and her child, purchased by defendants at administrators’ sale from the said plaintiffs, Hugh and Mary, administrator and administratrix, as aforesaid. That upon said sale and the giving of said note, it was agreed by the said Hugh and Mary, that in case said slaves should be taken from the possession of the defendants, and sold under and by virtue of execution upon any judgment before then rendered and unsatisfied against David May, that said note should be null and void ; and defendants aver that said slaves afterwards, and before the commencement of the suit, were taken from the possession of defendants by virtue of a writ of execution upon a judgment rendered before said sale against the said David May, which judgment was a lien upon said slaves, and under and to satisfy which, said slaves were sold. Defendants then averred that there had been a total failure of the consideration of said promissory note, and concluded with a verification.
    The replication to the special plea avers that the consideration for which the said promissory note was given has not failed, in manner and form and for the reasons in said plea mentioned and set forth.
    Upon the trial of the cause, the defendants offered in evidence to the jury a regularly certified record from the United States circuit court for the southern district of Mississippi, of the judgment and proceedings in that court in the case of George W. Tyson & Co. against Sarah May, administratrix, and Hugh W. Cunningham, administrator of David May, deceased; which record shows, that, at the November term, A. D. 1839, of said court, the said George W. Tyson & Co. recovered judgment against the said Sarah May, as administratrix, and Hugh W. Cunningham, as administrator, of David May, upon two promis sory notes executed by the said David May in his lifetime, for the sum of $2525 78. That a writ of fieri fiadas was issued upon said judgment, returnable to the May term, 1840, of said court, which was levied by the marshal upon several negro slaves, and among them, upon Maria and her two children, which writ of execution was returned without a sale having been made. That a venditioni exponas was the nissued, returnable to the November term, 1840, of said court, for the sale of said slaves, upon which the marshal returned that he had, on the 6th July, 1840, sold said negro slaves, including Maria and her two children, at public sale, &c. And that an alias fi. fa. was issued, returnable to the May term, 1841, for the balance remaining due upon said judgment, which was returned, no property found.
    This record was ruled out by the court, and not allowed to be read in evidence to the jury.
    The defendants then offered A. H. Buckels, the father of the defendants, as a witness, and offered to prove by him, that the note sued on was given by defendants to the plaintiffs, Sarah and Hugh, for the purchase of two negro slaves, to wit, Maria and her child, bought by defendants of the said Sarah and Hugh, administratrix and administrator of David May, at a public sale made by them of the estate of David May. That at said sale it was announced that said slaves were subject to the lien of sundry judgments, and amongst others, to the judgment of George W. Tyson & Co. aforesaid. That at said sale, the said Sarah and Hugh announced and agreed, as part of the terms of said sale, that in case said slaves should be levied on by virtue of said judgment, or any other to which they were subject, that then and in that case the sale should be null and void, and the notes given for the purchase-money should be cancelled and returned. That said slaves were purchased by defendants upon these terms and under this argreement. That said slaves were subsequently, and before the commencement of this suit, levied upon by the marshal, and taken out of the possession of the defendants by virtue of the fieri facias set out in the record aforesaid ; and that Maria and child are two of the slaves mentioned in the marshal’s return upon said fi. fa. and subsequently sold by him under the venditioni exponas.
    
    This testimony was also ruled out by the court; to which decision of the court, ruling out the record and evidence aforesaid, the defendants’ counsel excepted at the proper time. The case was then submitted to a jury, who returned a verdict for the plaintiffs. At a subsequent day of the term, a motion was made by defendants for a new trial, on the ground that the court improperly ruled out legal evidence offered by defendants, and refused to allow the same to go to the jury, which motion was overruled, to which the defendants also excepted.
    
      The defendants in the court below have brought the case up by writ of error.
    
      John B. Coleman, for plaintiffs in error.
    1. That a failure of title to property purchased at administrators’ sale may be set up in bar of the recovery of the purchase-money, has been settled by this court in Campbell v. Brown, 6 How. 230 ; Puckett v. McDonald, Ibid. 269; and this, too, in cases of a sale of land from which the purchaser has never been evicted. In the case at bar, the purchaser has not even a naked possession, the property for which the note was given having been taken out of his possession and sold by the marshal.
    In answer to the objection, that the transcript of the judgment of the federal court offered in evidence did not sustain the allegations of the special plea, it is sufficient to reply that the general issue was also pleaded; and that evidence of a failure of consideration was admissible under it. 1 Raymd. 87; 1 Salk. 344; Carth. 356 ; 1 Chitty 470.
    2. The testimony rejected by the court was competent for the purpose of showing the actual contract of sale — the terms and stipulations under which the vendors sold, and the purchasers bought. The property was offered for sale by the administrators, and purchased by Buckels, with the understanding that there were liens upon it, and the express agreement that if it were taken by virtue of any of these liens or incumbrances, the note executed for the purchase-money should be null and void, and should be cancelled and delivered up.
    Evidence, then, of the contract of sale and purchase, showing that by its very terms, the purchaser was under no liability to the vendor, was surely admissible in defence of an action brought by the vendor against the purchaser for the recovery of the purchase-money.
    While it may be admitted, for all the purposes of the case at bar, that in sales by administrators and trustees there is usually no implied warranty of title, it is nevertheless well settled that where they do expressly warrant the title, and thereby induce purchasers to buy, the purchasers can avail themselves of a failure of title as a defence to the collection of the purchase-money ; 2 Harr. & Gill, 176 ; Chitty on Contracts, 133, note (†.)
    3. The testimony rejected by the court was also competent for the purpose of showing that a fraud had been practised upon the defendants at the time of the sale, by the administrators.
    It was known to all the by-standers, and was admitted by the administrators, that the negroes were subject to the liens of various judgments, and liable to be levied on at any moment. The inevitable consequence would have been, that had the property been sold without any stipulation against these incumbrances, it would have brought nothing. To induce persons to purchase, the administrators stipulate, as a condition and part of the terms of the sale, that if any of the property is taken from the purchasers by any of these judgments, their notes given for the purchase-money shall be cancelled. The effect of this agreement is visible in the prices at which the property was sold. It brought its full value. Maria and her child, an infant, not named, sold for $825. Would any man in his senses have agreed to give such a price for a woman and child which were liable to probably a dozen of judgments? The full value of the negroes was bid, because the purchasers relied upon the agreement of the administrators, and supposed that they would comply with it in all honesty and good faith.
    
      James H. Maury, for defendants in error.
    1. If the rule of evidence which requires a correspondence between proof and allegation has any application to pleas, the decision of the court, in ruling out the record offered under the special plea, was right. The allegation of a judgment against May could not be proved by the record of a recovery against his administrators. 1 Starkie, 370-413.
    2. The evidence of the witness, so far as it was intended to establish the seizure and sale of the property, was properly ruled out by the court; for a judicial sale can be proven only by the writ, or an authentic copy; and cannot be proven by parol evidence. 1 Phil. Ev. by O. & H. 218, 219, note by Cowen & Hill, part 1, p. 542 - 544.
    The witness was also incompetent to .prove a verbal agreement, or any understanding between the parties not expressed in the note. Where parties have used the precaution to ascertain the terms of their contract by a written instrument, the law will not subject them to the uncertainty of parol evidence. which is therefore inadmissible for the purpose of enlarging, restraining, or varying the terms of a written contract. 1 Phil. Ev. 555, note by Cowen & Hill, 1460, where is cited 17 Wend. 190; 1 Cowen, 249; 14 Mass. 154; 4 Litt. 166.
    3. The stipulations which the proof was intended to connect with the sale of the property, were such as neither he nor the administrators had a right to make. The powers of an administrator are derived from the law and the probate court; and he is authorized by neither to embarrass the estate with covenants and stipulations that might result in its ruin. 2 How. R. 609; Chitty on Contracts, 84; IT. R.489 ; Coxe’s Digest, 14, citing 1 Gallison, 37. A warranty of title made by an executor would not bind the estate.
    
      J. F. Foute, on same side.
    There is no rule of law better settled, than that one which precludes the admission of parol evidence to contradict or substantially vary the legal import of a written agreement. .Renner v. Bank of Columbia, 9 Wheat. 581; Randall v.. Phillips and others, 3 Mason, 378.
    And all the evidence offered by the defendants below (the appellants) in the circuit court, is of the proscribed and inadmissible character above referred to.
    But the record offered by defendants was also clearly inadmissible, for the reason that that suit was res inter alios acta. See Baring and others v. Fanning and Coles, 1 Paine’s R. 549 ; Hurst’s Lessee v. McNeil, 1 Wash. Cir. Ct. R. 70; Lessee of James v. Stockey, Ibid. 330; Payne v. Coles, 1 Munf. 373 ^ Chapman v. Chapman, Ibid. 398. The motion for new tria was made on the ground of the alleged errors by the court in. excluding the record and witness’s testimony, offered by the defendants, and no other ground was laid; and it being dear, we think, from the rules and authorities above referred to, that the circuit court did properly exclude that evidence, there could be no error in refusing the new trial.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

It seems that the note on which this suit was brought was given for two slaves, purchased by the plaintiffs in error, at a sale made by the defendants in error, as the administrators of May. At the time of sale it was proclaimed that the slaves were subject to judgment liens, and the administrators offered and agreed that in case they should be seized under the judgments, then the sale should be considered as void, and the notes of the purchaser given up. With this understanding the sale proceeded, and the slaves brought their full value.

The defendants below pleaded non assumpsit, and a special plea, that the negroes had been seized and sold under a judgment rendered in the United States court against May, the intestate, in his lifetime, whereby the consideration had failed. Issue was taken, and on the trial the defendants offered in evidence a judgment rendered prior to the sale, against Cunningham and Mrs. May, as administrator and administratrix, since the death of May. This was properly ruled out under the special plea, as it did not agree with the allegation therein, that the negroes were seized by the marshal, under an execution on a judgment rendered against May in his lifetime.

The defendants then offered a witness to prove what had transpired at the sale, and that the consideration of the note had failed by a sale of the negroes under judgments; but this testimony was also ruled out, and the defendants excepted. They also applied for a new trial, and excepted to the overruling of their motion.

These two questions are presented: Did the agreement of the administrators, made at the time of sale, before the property was struck off, constitute a good defence to the action ? And if so, was it admissible under the general issue? We do not hesitate in giving an affirmative answer to both these questions. If the property was sold under execution for a debt of the estate, then the estate is not prejudiced by admitting the defence, for it has already received the benefit of the property. That an administrator may bind himself personally, in a sale of property, either real or personal, by a covenant framed for that purpose, cannot be questioned. This point was settled in the case of Sumner v. Williams, 8 Mass. R. 162, and the rule applied to this case decides it. The administrators, when they made the sale, agreed that if the property should be sold under the judgment liens, the existence of which they admitted, then the sale should be rescinded, and the notes of the purchaser delivered up. This agreement constituted part of the terms of sale ; it was a verbal covenant, as binding on them as though it had - been given in writing. Let us suppose they had made a written covenant to that effect; they would have been bound on it for damages in an action on the covenant. An administrator has such an interest coupled with his power, as to make his contracts binding. If the purchaser could have maintained an action for the breach of such a covenant, his defence to an executory contract may be placed upon the same footing, on the verbal agreement of the administrator, as he must be supposed to have agreed to give the value of the property only on the strength of the agreement. This is especially the case when the parties sue, not as administrators, but as individuals in their own right, as they have done in this instance. A failure of consideration is shown, in connection with their promise that on the happening of such an event the notes should be delivered up. The contingency had occurred which it was agreed should put an end to thebontract; it therefore extinguished all liability. Of course such a defence is proper under the general issue; and the judgment, and the levy and sale under it, constituted proper evidence to support the defence under this plea.

But it is urged that as the defendants below had given a note, they could not, by parol testimony, vary the written agreement. This rule of law has never been carried so far as to defeat the right to prove a failure of consideration. In such cases it has no application. We think, therefore, that the evidence was improperly ruled out, for which error the judgment must be reversed, and the cause remanded.  