It appeared from the bill that, in 1835, the plaintiff by her agent, Thomas S. Armistead, sold to the defendants a tract of land and agreed to convey the same in fee, at the price of $800, payable in three equal installments of $266.66 2-3 on 1 January, 1836, 1837 and 1838. The defendant entered into possession, and in March, 1836, paid $221.18, in part of the *Page 116 first installment; and, as the plaintiff alleges, the residue of the purchase-money and interest remains unpaid. The bill was filed in August, 1841, and states that the plaintiff had executed a deed and tendered it to the vendees and demanded the payment of the balance due, which they refused and prays a decree for specific performance.
The answers admit the contract and insist that only the last installment of $266.66 2-3, that fell due in 1838, remaining unpaid; and state that the plaintiff had so admitted repeatedly, and had executed a deed, and offered to deliver it upon payment of that installment and interest; and the defendants submit to receive the deed and pay that sum and interest.
The only dispute between the parties being as to the payments of parts of the purchase-money, it was referred to the master to inquire what payments had been made and to state the sum due to the plaintiff upon the foot of the contract. And he made a report in conformity to the bill, finding only the one payment of $221.18 in March, 1836, and the amount due the plaintiff for principal and interest up to 1 January, 1844, to be $828.25.
To this report the defendants took several exceptions varying in (151) form, but all in substance insisting that the report is not supported by the proofs, but is against them. The particular grounds for the exceptions will be found in the opinion of this Court. The Court has examined the evidence and has no hesitation in concurring in the opinion of the master.
It appears that, at the time the sale was made for the plaintiff, Thomas S. Armistead also sold to the defendants a piece of land belonging to himself and Robert Armistead; and that payments were made by the defendants to Thomas S. Armistead as the common agent of all the vendors; and that he divided the sums received from time to time among the vendors, in proportion to the amount of their several debts. In that way the plaintiff received from Mr. Armistead the sums due to her in January, 1836 and 1837. Afterwards a settlement took place between the defendants and Thomas and Robert Armistead, in which the latter gave the Griffins credit on the debts to themselves for only their shares of the several payments, after applying ratable parts thereof to the satisfaction of the plaintiff. But the defendants insisted that the money should not be thus applied, and that they had intended the payments to *Page 117 be exclusively on the debts to Thomas and Robert Armistead, and not on that to the plaintiff, except as to the first payment of $221.18, before mentioned. And the matter was then so settled by applying all the payments to the debts to the Armisteads; and the present plaintiff accordingly accounted with them and repaid to them the sums she had before received.
While the money was in the plaintiff's hands, as payments to her, and before she knew that the defendants raised an objection to the application of any part to her debts, the plaintiff mentioned, and also upon her examination as a witness stated that she had received the two first installments for the land, and the third was all that remained unpaid; and upon those declarations alone, (152) the defendants rely as evidence of the payments claimed by them.
It is plain that the defense is neither founded in law nor truth. The declarations of the plaintiff were, at the time they were made, perfectly true, as the plaintiff had every reason to think. But subsequent occurrences, and those at the instance of the defendants themselves, changed the state of things altogether, and made those payments, which the plaintiff thought were made to her, payments to other persons; and the plaintiff, in accordance with the directions of the defendants, paid over the money to those persons. Consequently, it is no longer a payment to her.
But it is said that the payments, after having been once applied by the plaintiff, can not be rejected by her. Certainly not by her alone; but all the parties concurred to the new application in this instance.
It has also been objected that Thomas S. Armistead is not competent as a witness, as he was the plaintiff's agent. But that relation does not generally affect the competency, and certainly can not do it here, since the object of his evidence is not to discharge himself by proving a payment by him for or to his principal, but to charge himself by admitting a payment from his principal to himself for and on account of the debt to him from the defendants.
The exceptions must be overruled, and the report confirmed; and decree for the plaintiff, with costs.
PER CURIAM. DECREED ACCORDINGLY. *Page 118
(153)