
    
      CLARK'S EXECUTORS & AL. vs. FARRAR.
    
    East. District.
    
      Feb. 1814.
    Suitmaintain.-executors, UIi°-
    Instrument, annexed Sc made part of hereference°may
    vendMdi-rects the price third ' person, on default, he may sue without making this per-A
    Purchaser* ⅛ danger of eviction, may withhold pay* ment.
    This is an action brought upon an instrument of writing, to have payment of part of the price of a plantation sold to the defendant, the appellant, by the Chevalier de la Croix and Daniel Clark, since deceased, represented by the two plaintiffs and appellees, R. Relf and B. Chew, his executors.
    An order of seizure having issued, as usual in such, cases, the appellant opposed it, alleging did not owe the full amount demanded, but already paid to one of the appellees a sum of money» which ought to be admitted as a set off, for so , much.
    In the course of the trial below, several 7 arose, which it is necessary to dispose of, before the . „ . , . ... merits of the case can be taken into consideration, ,
    I. The first of them is the objection of the defendant to the want of quality in R. Relf and B. Chew, to appear, as the executors of D. Clark.
    The facts, according to the evidence, produced by the plaintiffs and demurred to by the defendant, are that D. Clark did by his will appoint R. Relf and B. Chew his executors, but that R. Relf alone took letters testamentary. The defendant contends that one of the executors only having qua-lifted, he alone, not both, does represent the estate. Without considering; how far letters testa-ttientary are requisite to authorise an executor to act, and whether they add any thing to the power, which he derives from the will, it is certain that where a testator has not provided that his executors shall act jointly, and not singly, one of them may act alone, even altho’ the other should also have accepted the trust. R. Relf, therefore, if he had appeared alone, would have been a lawful representation of the deceased. His appealing with Chew cannot vitiate, the proceedings. For whether Chew has, or has not, the quality which he assumes, in either case, the estate is fully represented by one or by both.
    II. Another incident, in this case, which produced one of the bills of exceptions that came up with the appeal, was the refusal of the district Judge to cause the instrument of sale and mortgage, presented by the plaintiffs to be translated into English and furnished to the defendant. It is insisted, Upon, by the defendant, that inasmuch as that instrument was annexed to the original petition, and prayed to be taken as part of it, it ought to have been filed in English, in compliance with the stipulation made by Congress and accepted by our convention, viz. that the judicial written proceedings, in this state, should be in that language.
    It appears, however, to this court that the document alluded to, tho’ prayed to be taken as part the petition, is nothing but the evidence of the ciaim, annexed to the bill, and referred to for am- . . . pier information, and that it ought not to be const-deredas one of those judicial proceedings, which are required to be iir English.
    Besides, the defendant had waved all objections to the pretended irregularity, by pleading to the merits, and has thus shewn that he wanted not the translation of his own contract. The application was, therefore, unreasonable, and the district Judge did right to disregard it.
    III. The last incident was the suggestion made by the defendant to the district court, as to the propriety of making the widow Castillon a party plaintiff is this suit.
    That request was founded upon the circumstance of that lady, being the person to whom, by the act of sale, the sum of money now claimed was made payable. The district court expressed] its opinion that this was not necessary. It might have gone further and say that the application was irregular. For, either the plaintiffs ha vea right to recover, and then they are the proper parties, or they have no such right, and then their súit ought to be dismissed. ’
    Haviííc now disposed ofthe several incidental nuestions, which were raised in the course of the trial-in the district court, we now come to the merits of this cause. Have the appellees a right to recover ? And if so, to what amount ? The appel-lees are the sellers of a plantation, part of the price 0f which is now due and demanded. But, it is contended, . that by a clause, inserted in the contract of sale, it was stipulated that the appellant should pay the sum, now sued for, to a third person, viz. the widow Castillon, that this lady is, therefore, the person by whom it is recoverable. There is, indeed, in the instrument alluded to, a clause by which it is said that this money shall be paid to the widow Castillon, at a certain fixed time, as a discharge of the debt due her by the sellers, and it follows that, had the purchaser complied with that clause, the payment would have been good against the sellers. But, if he has failed so to‘do, can he now insist on that mode of payment as a right ? The price of the thing sold is the property of the seller. Ifhechusesto direct the purchaser to pay it over within a certain time to another person, not a party to the contract, he binds ,himself not to demand it of the purchaser, if he pay that other person, at the time appointed. But, if the purchaser neglect to make that payment, there can be no doubt, but the stipulation is at an end, and that the seller has the same right of calling upon him for the price, as if no such clause had ever existed.
    But, it is said that the third person, in this case, who was to receive the money, is a mortgage creditor, seller of this plantation to the appellees ; and that inasmuch as she is the only person, who can give a release of that mortgage, the stipulation that the appellant should pay to her was a clause inserted in his favour and for his-security. This circumstance, however, does not alter the case. For the purchaser has aright (and that independent of any stipulation) to require a release of, or security against, the mortgage with which the thing sold is incumbered ; and he cannot be compelled to pay the price until the danger of eviction.be removed. In this case, therefore, as in another lately decided in this court, Duplantier ~vs. Pigman, ante 236, whatever is due of the price of the plantation should not be levied by execution, until a release of the mortgage is tendered or security given.
    It remains to examine to what amount the ap- > pellees ought to recover—or, in other words, if , the set-off, opposed to their demand ought to be allowed.
    Supposing the oral testimony introduced in this case to have been legal evidence, it amounts to this, that S. Henderson understood from the contracting parties that sundry expenses', made by the sellers on the plantation, while they possessed it, were to bé reimbursed to them, over and above . the purchase money; that an account, of those exPenses> amounting to S 2041, 37, together with a sum °f ⅞ 1000, for interest, paid by Clark for forbearance of four months, for part of the pricedue, was presented' to Kenner and Henderson, paying agents of the appellant, which account was objected to by the appellant’s, attorney in fact— that this account was, however, afterwards paid by Kenner and Henderson : but, they do not recollect whether the appellant instructed them to pay it: they only presume, that the payment would not have been made, unless it had been authorised. Taking out the fact of payment to Clark of $3041, 37, on which the witnesses speak positively, the whole, of their testimony is only to their belief. They understood, they do not recollect : they presume, is all that they venture to say.
    But, laying aside the consideration of the import of the testimony, thereappear§ to have been, in this case, a wide deviation from the rules of evidence established by law. In a suit for the recovery of the price of a plantation, the conditions of the sale of which are expressed in a written contract, clothed with all the requisite formalities, oral testimony has been introduced for the purpose of shewing that, besides the price stipulated in the contract, ' a certain further sum was agreed to be paid, by way of reimbursement of expenses, made by the sellers on the plantation, while they possessed it. But the proceeds or result of these expenses were incorporated in the thing sold: the whole was sold for the sum mentioned in the contract, and_ the district Judge erred in admitting evidence to shew that the price stipulated was greater than there it appears to be. Evidence received, which ought to have been rejected, must be considered as no evidence. Therefore, any thing in Kenner and Henderson’s testimony, which has the tendency of adding to, or altering the written conditions of the contract of sale, is viewed, by this court, as if it had never been received. The only part of it which is legal evidence is the fact of their having paid to D. Clark, in behalf of the appellant, a sum of «5 3041, 37 : that sum must be admitted as a set-off against the claim and must be deducted from the amount demanded.
    It is, therefore, adjudged and decreed that the judgment of the district court be reversed, and that judgment be entered for the appellees, for .8 15,196, 13, with legalinterest, since the time, at which the sum here sued for became due ; but that no execution shall be issued, for the purpose of carrying this judgment into effect, until a release of the mortgage on the plantation of the appellant, in favor of the widow Castillon, to the amount of the present demand, be filed in theofEce of the clerk of the first district, or until sufficient security, to be approved by the district Judge, Jas given : and it is further decreed that the costs of the appeal be* paid by the appellees.
   By the Court.

The application of the appel-lees for a rehearing is founded on two grounds, neither of which appears to the court sufficient to . support it,

I. The appellees first allege that the court erred in declaring some part of the testimony, taken in this case, to have been improperly admitted, and recognising as legal, at the same time, some other part of the testimony. They observe that they know no rule of law, which authorises the defendant in a suit to prove, by parol evidence, that he has paid the plaintiff money, and which denieá the plaintiff the right of proving also by parol, to what purpose that money was received.

The court does not, indeed, believe that such an absurdity can be found in any rule of law. The plaintiffs, in this case, were at full liberty to prove, by parol evidence, that the money, by them received, was on -account of some other transaction titan the sale of the plantation : but the moment they attempted to apply it in that way, they violated the rule of evidence, which forbids the admission of parol evidence against or beyond the contents of a written contract. Therefore, such part of the oral testimony, as went to establish that some thing beyond the price, mentioned in the written contract, had been promised by the purchaser, was illegal evidence. The circumstance of its not having- been objected to by the defendant’s-counsel does not cure the defect. This court is bound to decide according to law, and to correct the ■errors found in the record, whether théy be noticed by the parties or not. The consent or omission of parties cannot make that lawful, which is forbidden by law. If the testimony of a slave had been heard, without any objection on the part of the adverse party, would the court be obliged to make it the rule of their decision, because it might appear on the record, and in the statement of facts ? The competency of the witnesses, say the appel-lees, is not questioned. No ; they were competent to prove any fact, except such as were against or beyond the written contract; but, every person was incompetent to testify against or beyond that.

This is not as the appellees call it a mere technical objection. It is one of great import and much substance. Its object is to preserve inviolate one of the most sacred rules of our law: a rule which, in matters of' public acts, is not made merely for the safety of the contracting parties, but also for that of third persons, whose safety may be affected by such acts.

II. The other reason, for which the appellees solicit a rehearing, is not supported by facts. It appears, by the record, that the appellant had engaged to pay toa creditor of the appellees, Madam Castiilon, the sum due, and that thefe exists in her favour a mortgage on the plantation bought hy the appellant. The appellant has alleged that this lady is the only person who can release that mortgage, and that he cannot therefore safely pay to the appellees. This is enough, therefore, to make it necessary for the court to require that he shall be secured against that mortgage, before execution can issue against him. The rule of judicial proceedings “that courts much decide secun-dum allegata fcP probata” is unnecessarily appealed to, on this occasion. The rehearing is refused,  