The evidence for the plaintiffs showed, “that Spencer Adams was the son-in-law, and his wife the daughter, of the defendant; that Spencer Adams was the son of Jane Caudell, who lived in South (North) Carolina ; that Jane Caudell and defendant were brother and sister; that Spencer *437Adams, sr., was their father, who died in Dallas county in Alabama, in the year 1830, leaving real and personal property with his last will and testament,,” which was duly admitted to probate, and read in evidence ; that the defendant, in 1830, took out letters testamentary as the executor of said will ; that on the 22d July, 1847, the plaintiff, Spencer Adams, was appointed attorney in fact of Abner Caudell and his wife, Jane Caudell; and that on the 29th February, 1848, he (the said Spencer) and the defendant made an agreement, the substance of which was, that if said Spencer “would abandon for Jane Caudell and Abner Caudell the commencement of a suit in chancery about to be commenced against the said defendant for the said Jane and Abner Caudell, and would make him a good title to the interest of Jane Caudell to the land mentioned in the complaint, he (the said defendant) would destroy a will which he had made, disinheriting the plaintiff Elizabeth Adams, and give her a child’s share or part of his estate.”
The bill of exceptions authorizes the inference, that the plaintiffs relied for a recovery on that agreement, and on the performance by the plaintiff, Spencer Adams, of all the obligations imposed by it on him. To show such performance, the plaintiffs proved that said plaintiff Spencer, on the 5th July, 1851, delivered to the clerk of the probate court of Dallas county a deed purporting to have been executed by Abner and Jane Caudell on the 14th November, 1835, and to convey to the defendant their right, title, claim and interest, in and to the land mentioned in the complaint: with certain certificates thereon, amongst which is a certificate of one of the judges of the superior courts of law and equity for the State of North Carolina, relating to the acknowledgment of Abner and Jane Caudell as to their execution of the deed. That certificate bears date September 16th, 1836. The deed and certificates were read in evidence by the plaintiffs ; the deed having been “ produced by notice from the possession of the said defendant.”
As against the plaintiffs, it is fair to assume, that the question of the performance on the part of the plaintiff, Spencer Adams, of the obligations imposed upon him by the said agreement, was material ; for, without proof of such perform-*438anee, nothing appears in the evidence- which gives them a semblance of a right to recover. Regarding that question as material, it was not erroneous to allow the defendant to show, that in fact there was no performance on the part of said Spencer. Evidence which tended to show that the deed which the said Spencer had delivered in 1851 to the clerk of said probate court, was a deed which had been sent or delivered to said Spencer by. the grantors, for the defendant, long before the said Spencer had become their attorney in fact, and that he had improperly withheld and concealed it from the defendant, until after he had made the agreement with defendant relied on for a recovery in this suit, certainly tends to prove that he did not perform the obligation Avhich a just construction of the agreement imposed upon him. That agreement was not that he would simply hand over to the clerk, or to the defendant, a deed which really belonged to the defendant, and which the said Spencer had long improperly withheld from him,butthat he would??ia/ce the defendant a good title. These views lead us to the conclusion, that the deed of Oaudell and wife, dated September 15th, 1833, and attested by the plaintiff Spencer Adams, was not wholly irrelevant, and that there was no error in refusing to exclude it.
There was some evidence adduced by the plaintiffs, tending to show that at least a part of the consideration of that agreement was the abandonment of the contemplated suit in chancery by Abner and Jane Oaudell against the defendant; that the defendant was the executor of the will of Spencer Adams, deceased, the father of said Jane; and that it was among the objects of that intended suit, to obtain for said Abner and Jane “ an equal portion of the estate of said testator,” a setting aside of his said will and its probate, and a settlement of the estate. It was competent for the defendant to show a total want of consideration for said agreement. It was, therefore, not erroneous to admit evidence offered by him before he had rested his defence, tending to show that a part of the consideration was wanting and did not exist; for the court was not bound to assume, before he had closed his testimony, that he could not and would not, before closing, prove that the other part of the consideration was also wanting and did not exist. — Cuthbert v. Newell, 7 Ala. Rep.
*439In this aspect of the case, there was no error in admitting the receipt executed by Abner Caudell to the defendant, who was executor as aforesaid. The receipt tended to prove that, as to some of the avowed objects of the intended suit, there was no ground for any such suit, especially by Abner Caudell and Jane Caudell; and that,, therefore, part of the consideration for said agreement was wanting and did not exist.— Stewart v. Bradford, 26 Ala. Rep. 410.
The evidence offered by plaintiffs, “ that at the time of the said agreement between the said Spencer Adams and the defendant, the said plaintiffs were poor and in destitute circumstances,” was properly excluded. — Ware v. Cartledge, 24 Ala. Rep. 622.
There is no error in the rulings of the court below, and its judgment is affirmed.