Lindsay, J.
This is one of those cases which depends mainly "upon the evidence for its determination in this court. [242]*242There is no matter of law, as applicable to the facts adduced on the trial, that involves any serious difficulty. A jury was waived on the trial, and both the law and the facts of the case were submitted to the consideration of the court. This court, therefore, has the less hesitancy in revising the action of the court below upon the facts of the ease, as well as upon the law.
This suit was brought by the assignee of two notes, executed and delivered to Samuel Lawler by the intestate of the appellees, on the 5th day of January, 1855, for the sums of $1000 and $40 respectively, and secured by a mortgage, of even date with the notes,. on 1500 acres of land. The defense is, substantially, payment of the notes sued on, by the sale of a tract of land containing 434|- acres, by the obligor to the assignee, the purchase money of which was applied in liquidation of the indebtedness. If the payment was so made, it has become a complicated question, from the assignment and transfer of the notes and mortgage having taken place five days subsequent to the date of the written evidence of the contract of sale of the land. The bond for title to the land bears date January 26th, 1855; and the assignment of the notes and mortgage bears date January 31st, 1855. Besides which anachronism, if it be a payment, there is, in the title bond of the vendor, an acknowledgment of the receipt of $1800 of the purchase money for the land; rating the price of the land at five dollars and a half per acre, and reserving the residue of the purchase money to be determined by a future survey. This state of facts, as shown by the written evidence, complicates the question, and must be explained by oral testimony to relieve it of embarrassment.
It may be affirmed, that, as a matter of law, generally settled in American courts, this recital in the title bond is not a conclusive presumption of payment. At most, it is only prima facia evidence of the amount paid; or, that there was any payment at all. Whether in a deed, or a title bond, in an actual conveyance, or an obligation to convey, the consideration may be inquired into; and the grantee may recover back [243]*243the consideration upon the covenant of warranty, or the grantor, by our special action on the case, may recover the purchase money actually unpaid, whatever may be the recitals in the instruments. So that the mere recital of payment in the deed, or bond, does not operate as an estoppel. The fact of payment is a legitimate subject of inquiry in each, notwithstanding such recital. A party would be estopped to deny the obligation to convey, or the conveyance for a valuable consideration, because these being the special objects of the instruments, to which the solemn attention of the makers is peculiarly addressed at the time of their execution, are facts against which no averments should be allowed. The consideration, however, in each of them, may be inquired into, and the payment established, or repelled by parol proof. The recital has no more force or effect than a common receipt, which, it is universally conceded, may be explained or set aside by parol evidence.
The court is satisfied, according to the well settled law of the land, that, in defense of the action upon the notes and mortgage, the party was authorized to go into an explanation of the recital of payment, in the title bond for the conveyance of the land. It was alleged in the answer that the land had been sold to the assignee of the notes, in consideration that he would pay off the notes, and thus release the mortgage. And this was the line of defense adopted. It was insisted that, in fact and in truth, the plaintiff, in purchasing and paying for the notes and mortgage, had in this way paid the purchase money for the land, and thus became entitled to a credit pro tanto with his vendor upon his purchase of the land, and that the acknowledgment in the bond had been made in contemplation and in anticipation of the settlement of the notes by the vendee—that no money was actually received by the vendor.
Upon the setting up of this defense, the plaintiff reaffirmed his cause of action by an amendment of his petition, in which ho asked a specific enforcement of the contract of sale according to the title bond, and the correction of an alleged mistake [244]*244in the description of the mortgaged premises. The defendants resisted the correction and foreclosure of the mortgage, upon the ground that when the amendment seeking the correction and foreclosure was filed, it was a new cause of action set up, and was then barred by the statutes of limitation.
If the notes were a subsisting debt at the time of the institution of the suit, not barred by the statute of limitations, the mortgage, executed cotemporaneously to secure their payment, was still valid, as long as the debt remained unsatisfied. No matter at what time the power of the court was invoked for its correction and foreclosure, and for a decree to subject the mortgaged property to the satisfaction of the debt, it was opportune, if the jurisdiction of the court over the debt itself was not ousted. The mortgage was but an incident of the debt; and the incident, in law as in logic, must abide the fate of its principal. It is always a question of fact, as to what may be the mortgaged premises. The mortgage is valid so long as the debt subsists. And at the time of adjudication the court is bound to determine what premises are to be sold; and the- ear of the court ought always to be open to hear, and its hand ready and prompt to act upon and correct any mistake or error which may be made manifest by proof, up to the moment of its final decree. Whenever the facts are so presented, the court must take cognizance of them, and remove every obstruction ; yet, in such a manner as not to compromit the rights of strangers to the record. The statute of limitations does not affect the question.
It is certainly true, as asserted by counsel, that, by the common law, all sealed instruments, deeds, etc., import a consideration. And it is also true that, in its strictness, it would forbid an inquiry into the truth of the recitals in a deed. This doctrine still obtains in England, and in one or two of the American States, where they have no such statutes as our statute of 1858. With them the recitals in a deed are conclusive upon the parties to the deed. But American authority generally, in regard to recitals in deeds, is adverse to the Eng[245]*245lish doctrine. Almost universally. in the American States, whether they have a statute like our statute of 1858, or not, courts consider such recitals as only prima facie evidence of the fact recited. Every enlightened jurist cannot hut concur in deprecating the confusion, superinduced in the construction and interpretation of written contracts, in consequence of dispensing with seals, and of everything of a like import, in certain instruments. The result has been to perplex and confound the clear conception and satisfactory elucidation of the legal effect of many sealed and unsealed instruments. Such innovations upon long-established rules, which have become thoroughly interwoven into the Arery framework of the judicial system of a country, are rarely duly weighed and considered in the hasty legislation of crude reformers; and the resulting mischief in complicating questions, and in multiplying the uncertainties of judicial administration, often largely OArerbalance the imagined benefits from a change.
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Lindsay, J.
This is one of those cases which depends mainly "upon the evidence for its determination in this court. [242]*242There is no matter of law, as applicable to the facts adduced on the trial, that involves any serious difficulty. A jury was waived on the trial, and both the law and the facts of the case were submitted to the consideration of the court. This court, therefore, has the less hesitancy in revising the action of the court below upon the facts of the ease, as well as upon the law.
This suit was brought by the assignee of two notes, executed and delivered to Samuel Lawler by the intestate of the appellees, on the 5th day of January, 1855, for the sums of $1000 and $40 respectively, and secured by a mortgage, of even date with the notes,. on 1500 acres of land. The defense is, substantially, payment of the notes sued on, by the sale of a tract of land containing 434|- acres, by the obligor to the assignee, the purchase money of which was applied in liquidation of the indebtedness. If the payment was so made, it has become a complicated question, from the assignment and transfer of the notes and mortgage having taken place five days subsequent to the date of the written evidence of the contract of sale of the land. The bond for title to the land bears date January 26th, 1855; and the assignment of the notes and mortgage bears date January 31st, 1855. Besides which anachronism, if it be a payment, there is, in the title bond of the vendor, an acknowledgment of the receipt of $1800 of the purchase money for the land; rating the price of the land at five dollars and a half per acre, and reserving the residue of the purchase money to be determined by a future survey. This state of facts, as shown by the written evidence, complicates the question, and must be explained by oral testimony to relieve it of embarrassment.
It may be affirmed, that, as a matter of law, generally settled in American courts, this recital in the title bond is not a conclusive presumption of payment. At most, it is only prima facia evidence of the amount paid; or, that there was any payment at all. Whether in a deed, or a title bond, in an actual conveyance, or an obligation to convey, the consideration may be inquired into; and the grantee may recover back [243]*243the consideration upon the covenant of warranty, or the grantor, by our special action on the case, may recover the purchase money actually unpaid, whatever may be the recitals in the instruments. So that the mere recital of payment in the deed, or bond, does not operate as an estoppel. The fact of payment is a legitimate subject of inquiry in each, notwithstanding such recital. A party would be estopped to deny the obligation to convey, or the conveyance for a valuable consideration, because these being the special objects of the instruments, to which the solemn attention of the makers is peculiarly addressed at the time of their execution, are facts against which no averments should be allowed. The consideration, however, in each of them, may be inquired into, and the payment established, or repelled by parol proof. The recital has no more force or effect than a common receipt, which, it is universally conceded, may be explained or set aside by parol evidence.
The court is satisfied, according to the well settled law of the land, that, in defense of the action upon the notes and mortgage, the party was authorized to go into an explanation of the recital of payment, in the title bond for the conveyance of the land. It was alleged in the answer that the land had been sold to the assignee of the notes, in consideration that he would pay off the notes, and thus release the mortgage. And this was the line of defense adopted. It was insisted that, in fact and in truth, the plaintiff, in purchasing and paying for the notes and mortgage, had in this way paid the purchase money for the land, and thus became entitled to a credit pro tanto with his vendor upon his purchase of the land, and that the acknowledgment in the bond had been made in contemplation and in anticipation of the settlement of the notes by the vendee—that no money was actually received by the vendor.
Upon the setting up of this defense, the plaintiff reaffirmed his cause of action by an amendment of his petition, in which ho asked a specific enforcement of the contract of sale according to the title bond, and the correction of an alleged mistake [244]*244in the description of the mortgaged premises. The defendants resisted the correction and foreclosure of the mortgage, upon the ground that when the amendment seeking the correction and foreclosure was filed, it was a new cause of action set up, and was then barred by the statutes of limitation.
If the notes were a subsisting debt at the time of the institution of the suit, not barred by the statute of limitations, the mortgage, executed cotemporaneously to secure their payment, was still valid, as long as the debt remained unsatisfied. No matter at what time the power of the court was invoked for its correction and foreclosure, and for a decree to subject the mortgaged property to the satisfaction of the debt, it was opportune, if the jurisdiction of the court over the debt itself was not ousted. The mortgage was but an incident of the debt; and the incident, in law as in logic, must abide the fate of its principal. It is always a question of fact, as to what may be the mortgaged premises. The mortgage is valid so long as the debt subsists. And at the time of adjudication the court is bound to determine what premises are to be sold; and the- ear of the court ought always to be open to hear, and its hand ready and prompt to act upon and correct any mistake or error which may be made manifest by proof, up to the moment of its final decree. Whenever the facts are so presented, the court must take cognizance of them, and remove every obstruction ; yet, in such a manner as not to compromit the rights of strangers to the record. The statute of limitations does not affect the question.
It is certainly true, as asserted by counsel, that, by the common law, all sealed instruments, deeds, etc., import a consideration. And it is also true that, in its strictness, it would forbid an inquiry into the truth of the recitals in a deed. This doctrine still obtains in England, and in one or two of the American States, where they have no such statutes as our statute of 1858. With them the recitals in a deed are conclusive upon the parties to the deed. But American authority generally, in regard to recitals in deeds, is adverse to the Eng[245]*245lish doctrine. Almost universally. in the American States, whether they have a statute like our statute of 1858, or not, courts consider such recitals as only prima facie evidence of the fact recited. Every enlightened jurist cannot hut concur in deprecating the confusion, superinduced in the construction and interpretation of written contracts, in consequence of dispensing with seals, and of everything of a like import, in certain instruments. The result has been to perplex and confound the clear conception and satisfactory elucidation of the legal effect of many sealed and unsealed instruments. Such innovations upon long-established rules, which have become thoroughly interwoven into the Arery framework of the judicial system of a country, are rarely duly weighed and considered in the hasty legislation of crude reformers; and the resulting mischief in complicating questions, and in multiplying the uncertainties of judicial administration, often largely OArerbalance the imagined benefits from a change.
The well settled principles of the lavv, therefore, authorizing an inquiry into the truth of the recital in the written contract, upon the subject of consideration, and an investigation of its nature and character, though it purports to have been a payment in money, it is necessary to examine the evidence adduced on the trial, to determine upon its weight and sufficiency to counterbalance, or modify, or explain the acknowledgment of payment in the title bond. And here it may be remarked, that it is a rule of laAV, when suspicion is thrown, by any proof, however slight/ upon the recital in the instrument, the burden of proving how the payment was made, is devolved upon the party claiming the benefit of such payment. This proof was not made, but the party rested upon the recital in the bond, coupled Avith the admissions offered as rebutting evidence to the proof adduced by the opposite party, shoAving affirmatively how that payment was made.
The eAÚdence is composed of the depositions of ten living-witnesses, Avho Avere called upon to testify some ten or eleven years after the occurrence of the incidents of which they speak [246]*246—three of whom testified alone as to the personal habits, character and condition of the obligor in the title bond. These latter witnesses bear testimony that he was.a man of very intemperate habits, of good intellect, but careless .and extravagant ;• and when he had confidence in a man, credulous and trusting. None knew his actual condition at the time of the execution of the title bond. The other seven, equally ignorant of his condition at the time of the execution of the instrument, all testify as to admissions made by the one, or the other, of the parties, subsequent to the date of the title bond. This, it must be borne in mind, is a species of evidence which, though held competent by the law, is regarded as the weakest of all human testimony: because it is the mere repetition of oral statements, subject to much imperfection and mistake,- from the party, perhaps, not being clear and exjfiieit in his meaning, and from the unintentional alteration of expressions really used, which may vary the import of what may have been actually said. All courts and jurists concur in the opinion, that verbal admissions are to be received with great caution. Still, such evidence is held competent by the law. In weighing, then, tho-conflicting, statements of witnesses (and such is their character-in this case), it becomes the duty of the court to examine .and compare the' circumstances in -which each of the witnesses was-placed, and to ascertain, if possible, which had the better-opportunity of understanding clearly and distinctly Úiq factum probancfown, and was most likely to be impressed with the precise character of the admissions; so that the greater probability may be attained of the true nature of the transaction upon which the admissions were predicated. To a mind in any degree familiar with the philosophy of human testimony, there-can be but little difficulty in coming to the conclusion that Samuel Lawler, who assigned and transferred the notes and mortgage to the appellant, only five days after the execution of the title bond, occupied a position, and was attended with those concomitants, which would give him a more distinct apprehension, and would more indelibly impress his mind with [247]*247the true state of the transaction, than the fugitive and evanescent language uttered afterwards in the hearing of others, without any special incident, circumstance or interest to fix the attention of the hearers. Samuel Lawler testified, that the appeHant paid him the money on the notes; and the witness at the assignment and transfer “ gave up to (him) Eborn,” the said notes and the mortgage, and assigned them to him, he stating that the money he paid to me (Lawler, the witness,) was to go towards paying for the land that he bought of Cannon.” This witness fixed the precise date of this statement. Ilis memory was refreshed by the date of the assignment and transfer. It took its reckoning from that event, and by the law of mental association the incidents of that moment were revived in his recollection, and no right-judging mind can forbear to give more credence to such testimony than to the vague recollections of those who could fix no dates nor recur to any certain incidents or epochs which were calculated to fortify and give a semblance of absolute verity to their statements. This arrangement, "which is testified to by Samuel Lawler, is corroborated by his son, J. W. Lawler, who says he was present when Cannon and Eborn made the arrangement in the trade for the land, and that the agreement was that Eborn was to pay the notes, “ lift the mortgage,” and take the land in compensation for his extinguishment of the notes due from Cannon to Lawler. There being nothing to fix his memory as to dates, he necessarily spoke vaguely as to the time when this transaction took place. From recollection he could only state the time approximately; but to give it any significance, it must have" been anterior to the actual payment of the notes and the lifting of the mortgage. By supposing a like error in dates from lapse of memory in other witnesses, all the testimony might be brought into harmony, and thus save them all from the uncharitable inference of false swearing—a rule of interpretation which both law and morality strongly inculcate. The father was corroborated in Ms testimony by another son, who was also vague and indefi[248]*248nite as to amounts and dates as others, but was unequivocal as to the substantive fact that Eborn had got land from Cannon to settle the Lawler notes and “ lift the mortgage.” These are positive, affirmative facts, not altogether or entirely dependent upon verbal admissions, for one of these witnesses says he was present when the agreement was entered into between Cannon and Eborn.
How, this testimony,' if true, shows conclusively, that Cannon’s liability on the notes was released, the debt extinguished, and the mortgage, as an incident to the debt, was released with it. The testimony of the other witnesses, as to verbal admissions, made sometime afterwards by Cannon, is of that vague, unsatisfactory character which renders it peculiarly obnoxious to that cautionary admonition given by elementary writers upon evidence, and usually embodied in the charges of all enlightened courts to juries.
The court, after a full survey of all the evidence, a careful analysis of it, and a calm consideration of its weight and bearing, is brought to the conclusion that at the institution of this suit the two notes which had been given by Cannon to Lawler, were not a subsisting debt against the estate of Cannon ; and that the administrators had good and sufficient reasons for rejecting them, as an improper claim against their intestate.
But, as the mutual responsibilities of these parties have been brought up in review before the court in this case, and, as the District Court had original as well as appellate jurisdiction in all matters pertaining to the administration of decedents’ estates, it is right, and it is the duty of this court, in order to put an end to litigation between them, to settle and adjust, by the decision here, all matters in any way involved in this controversy.
Before proceeding to make such settlement and adjustment, however, the question of the mistake, as to the locus m quo of the mortgaged premises, must be disposed of. The argument upon the proof of mistake is plausible, but it is by no means [249]*249satisfactory. About the power and authority of the court to correct the mistake in this trial, this court does not entertain a doubt. But, then, the court considers the evidence insufficient to establish the mistake beyond a reasonable doubt. The residence of other parties upon the upper half league, with a claim of right, was, by no means, totally incompatible with the right of Cannon to give a mortgage upon that half of the Cannon league. It might be true that others' were in possession of it, and, yet, the title and right of property might be in Cannon. From this defect of evidence, the court would be debarred from making any correction in the deed of mortgage, if mistake there be. In any event, however, the conclusion about the notes would dispense with the necessity of the correction, if the mistake were satisfactorily proved. It may be said, also, in reference to the deed for sixty-two and a half acres, and the deed of the 30th of March, 1855, they are not really in litigation in this suit, since there is no proof that the consideration for which they were given was not paid. The party is precluded from recovering on his drawback for the eighty-one acres in the deed of the 30th of March, 1855. In fact, these cases are not involved in the equities of the suit brought, but are rather introduced as evidence for the elucidation of the real point in issue between the parties. If it were otherwise, the case of Smith v. Fly (24 Texas, 345) would prevent a recovery.
It appears, then, that at the date of the execution of the title bond, giving the appellant credit for the $1800, he was still indebted to Cannon for the residue of the land, at the price stipulated, in the sum of $589 i¥o, but, at the time, he was legally bound, as surety for Cannon, in various sums, which he afterwards was compelled to pay—the principal and interest of which, at the time of actual payment, operated, in equity, as an extinguishment of so much of the principal and interest of his indebtedness on the land, and which was an equitable set-off against the land debt. The authentication and the allowance of these claims by the administrator do not [250]*250prevent their application as an equitable set-off in dispensing-justice between these parties. If Eborn, twelve months after the death of Gannon, had paid, as his surety, precisely the amount then due upon the land, equality, the very basis of equity, would have been attained, and there would have been no longer cause for litigation between them. With the adjustment of these equitable set-offs of the surety payments against the- residue of the purchase money for the land, Eborn will be the equitable owner of the four hundred and thirty-four and a half acres of land, for which he should have the legal title. The judgment of the court below is accordingly reversed and reformed.
Reversed and reformed.
Morrill, C. J.
Agreeing in the general result of the decision and reasoning- in this case, I beg leave to dissent so far as relates to what is stated relative to the supposed superiority of sealed instruments, and so far from regretting that seals and scrolls were abolished by the act of 1858,1 regret that it was ever deemed necessary to introduce scrolls or seals, and mating any distinction in instruments having and not having a scroll or seal annexed to the name or names of the maker.