The qualification to the first charge given by the court, involves the question of the validity of the agreement made between the parties as to the note sued on. The evidence proved that this note, which was for $300, was originally given for land bought by. the defendant from the plaintiff; that the latter, discovering, he did not own a *288portion of tbe land sold, agreed with the vendee, on receiving from him $225 on the note, that he should be discharged from the payment of the balance, unless he executed to him a valid deed for such portion within a short time thereafter ; that no such deed was executed for nearly two years, and that thereupon the defendant abandoned the land to which the agreement referred; and the charge of the court was, in effect, that upon these facts the plaintiff was not entitled to recover.
There can be no doubt that, if by the terms of the original contract, it had been provided that the defendant should not pay a certain amount of the purchase money, until the vendor executed to him a valid title for the land in question, it would then fall directly within the principle of Whitehurst v. Boyd, 8 Ala. 375, and Phillips v. Longstreth, 14 Ala. 337. It is true, the general rule is, that verbal evidence is not admissible for the purpose of contradicting or altering a written instrument ; but this rule does not exclude such evidence, when it is adduced to prove that such instrument is totally discharged. — G-reenl. Ev. § 302, and cases there cited. If the defendant had paid the whole of the purchase money, and taken possession under -the contract, a court of equity would have enforced it, by decreeing a conveyance ; and if this could not have been done, on account of a want of title in the vendor, he would have been compelled to refund. — Story’s Eq. § 762. This being the law, it would be singular if the parties could not, with the view of avoiding any future difficulty which might result from the failure of the vendor to obtain titles, extend the time of payment of the note, and provide that it should not be enforced if valid titles were not made within a certain time. We cannot doubt as to the validity of such an arrangement. So long as the vendee retained possession under the contract, it might operate on his part as a waiver, or extension of the time ; but he was not bound to wait always, since, by doing so, he was rendering himself liable to the actual owner, and might therefore abandon the possession in a reasonable time; and if he did so, the note could not be enforced against him. The fact that the defendant retained possession of the other lands, does not affect the principle, as the subsequent agreement had no relation to them. It was the same as if no other land had been *289purchased than the piece, the failure to make titles to which it was agreed should discharge the note.
It seems to have been supposed, from the charge that was subsequently requested, that the agreement as to the discharge of the note was in the nature of a penalty ; and that, conceding its validity, the only benefit the defendant could obtain from it was, to scale the note to the amount of the actual value of the land to which titles were not made, and the fence which was upon it. But this position is not tenable. We doubt whether the docti’ine can in any sense apply to an agreement of this character; but, if it does, the plaintiff can derive no advantage from it, as the damages resulting from the failure to make a good title were uncertain. There was but a single act to be doné ; and the disproportion between the value of the land to be conveyed and the amount due upon the note, if there was any, was so slight, that it could not authorize the court to declare it a penalty. — Watts v. Sheppard, 2 Ala. 425.
In relation to the defendant being estopped by his promise, made to the agent of the plaintiff on Sunday, to pay to him the balance due on the note when he should como out from Georgia, if he would not sue upon it, it is only necessary to say, that if the promise, and the action of the plaintiff upon it, would, under ordinary circumstances, conclude the defendant, it could not have that effect in the present instance ; because the promise, being,made on Sunday, could, under our decisions, have no binding effect. — Saltmarsh v. Tuthill, 13 Ala. 390; Dodson v. Harris, 10 Ala. 566; O’Donnell v. Sweeny, 5 Ala. 467.
What we have said disposes of the .questions arising upon the charges given and requested, and we pass to the points presented by the rulings of the court below upon the evidence.
The evidence in relation to the tender of the deed made by a third person was also properly excluded, since, under the agreement proved, the defendant was not bound to accept a deed from any other person than the plaintiff. If the title was in the party who made the tender, it might, it is true, have accomplished the object of the contract, which could only have been the transfer of a valid title; but it might *290have involved the trouble and expense of an inquiry to ascertain whether such title was good, and this inquiry the defendant was under no obligation to make. He had stipulated for a conveyance from the plaintiff; he had a right to stand upon the terms of his agreement in this respect, and was not bound to accept a tender made by a stranger.
As to the offer of the deed on the part of the plaintiff, it is to be observed, that by force of the agreement, as established by the evidence, the plaintiff was bound to execute to the defendant a valid title for the strip of land which was included in the purchase, within “a short time” from the 8th December, 1849 ; and if this was not done, the latter was to be discharged from the payment of the balance due upon the note; and this agreement, as we have seen, was a valid one. The record shows that the tender of the deed on the part of the plaintiff was not made until after the 13th of October, 1851, and after the defendant had abandoned the possession of the land. He was not bound to wait an unreasonable time for the plaintiff to convey, since, by doing so, he might, as we have said, subject himself to a recovery of mesne profits by the true owner; and we think that, under the circumstances, he was not required to wait for near two years. But however this may be, we cannot say there was error in the ruling of the court upon this point, for the reason, that although it appears that the tender was not made before the 13th October, 1851, it is impossible to say when it was made —non constat, but that it may have been made after the commencement of the action. The rule is, that the appellant must show error clearly ; and if he fails to do so we will not presume it.
There was no error in refusing to allow proof by parol of the existence of the title to the lands by patent and deed, without first laying the proper basis for the introduction of secondary evidence. It is unnecessary to refer to cases to sustain a principle so familiar.
The only remaining question is, whether the non-residence of the grantor of a deed will, of itself, authorize the introduction of secondary evidence to prove title under it in the grantee. The presumption, in such a case, is that the deed is with the grantee, and if he is a party, as in the present case, *291he must be notified to produce it, or its loss, or non-existence, must be established, before inferior evidence can be resorted to.
Judgment affirmed.
Rice, J., did not sit in this case, having been of counsel for the appellee before his election to ‘the bench.