
    
      EXECUTORS OF SPRIGG vs. HERMAN.
    
    Appeal from the court of the first district
    
      in a peti-tory action, where Fraud is not aiieg-ed, parol evidence cannot be given that a deed thanhethatar ports!lt T>ur
    misdate the er'to seii!°the opinion expressed by the princi-Pal> that the should bring a certain invalidate110^ agent fcriess?
   Matthews, J.

delivered the opinion of the - court. This suit is commenced in the ordina-py form Gf a petitory action, in which the plaintiffs setforth^the title of their testator, and claim to recover a certain tract of land descri* bed in their petition, from the defendant, as possessed without right; who, in his answer, ¶ . ’ pleads a title derived from the testator of the _ , plaintiffs, through the agency of his attorney infact: he obtained judgment in the court be* ° I°w, from which the plaintiffs appealed,

The evidence of the case shews, that Sham-burg, who' executed to the defendant a public act of sale of the land in dispute, was autho-rised to sell it, by Sprigg,the testator; the authority under which the attorney acted is evidenced by a private letter from his constituent, dated at Baton Rouge, on the 30th November, 1826, and the deed wa&made to the defendant ⅝ - on the I2tli of February, 1827.

The appellants endeavor to destroy the force - l, . , ' , , ' , and effect of the act of sale, (executed as above stated) by shewing that the agent transcended his power, or that he acted under it after all authority had expired by the death of the constituent. To prove this last fact, their counsel claimed a right of interrogating the agent himself as a witness, to shew that he signed the deed on a day later than the date which the instrument bears on its face. This testimony was objected to by the counsel of the ap-pellee, and his objection being sustained by the district court, a bill of exceptions was taken, &c. We are of opinion that there was n'o error in rejecting the testimony thus offered.— The suit is in the ordinary mode of actions to recover property. The defendant sets up title, and relies on an authentic act in support of his claim; and an attempt is made to invalidate this act by the very agent who executed it.— Should that, which the plaintiffs endeavor to prove in this way, be true,.it would give a fraudulent aspect to the conduct of all parties concerned in passing the deed—agent, notary, and purchaser. If there has been any violation of good faith! in the transaction, the fraud ought _ to have been suggested in an action to rescind ^e gale, ⅛ .which all concerned in it might j)een ma(je parties, in the present form of action, the agent was certainly incompetent to destroy his own act, to the prejudice of the defendant.

In the letter which gives the power to sell, the constituent states, that he thought the property worth six or seven thousand dollars, and that it should, on sale, produce one or the other of these amounts; but that if so much could not be obtained, to sell for less: the agent sold for $3,500. This letter gives, absolutely, a power to sell, which is not infringed by a mere expression of opinion on the part of the owner, of the value of the property. The price at which it was sold is certainly far below his estimate, but there is no evidence on the record to shew that the sale was not made in good faith, and for a sum approaching the value of the thing sold. In truth, this question, as to price, cannot fairly arise in the present suit.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.

tlennen for the plaintiff Hoffman for the * ' defendant.  