The bill in this case was filed by the heirs-at-law of a purchaser, against a vendor, to obtain specific performance of a contract of sale of real estate to their ancestor. The'chancellor granted relief, but imposed on the complainants, as a, condition precedent, the payment of a certain sum, alleged to be the unpaid balance of the purchase-money. From that decree the complainants have appealed, and. assign as error that .the chancellor erred to their prejudice in laying down rules for the guidance of the register in taking the account. The assignments of error, in their direct effect, can not and do not raise any point on the equity, of complainants’bill, or the right of complainants to maintain this suit. It is contended, however, for appellee, that there is no equity in the bill of complainants; and consequently, that the decree of the chancellor should not be reversed, even if we should find that in the matter of the account the com s had fallen into an error.
This is not the first time we have had occasion to consider this question, although we have not, in terms, expressed our opinion upon it. We will-now proceed briefly *491to do so, and to give a few of the reasons which induce us not to adopt the practice indicated.
There is, in this case, no assignment of error, under which we could, with any propriety, dismiss the complainants’ bill. The complainants assign the errors, and, of course, do not aver that they have no right to relief. The most that we could do — and, as we understand it, the appellee asks us to do no more — would be to affirm that tlie complainants had obtained greater relief than they were entitled to, and, on that account, refuse to reverse the. chancellor’s decree. Refusing to reverse, the result would be an affirmance of tbe decree below. This, in many cases, would operate a very great oppression. It would cut off' all right of amendment, in cases in which, possibly, the very defect, on account of which we should refuse to reverse, might be remedied in the court below.
If the chancellor had decreed absolutely against tbe complainants below, and the ease had come here by appeal, we would, in most cases, feci it our duty to inquire if the bill contain equity; and finding that it does not, to affirm the chancellor’s decree, although he may have rested his judgment on a different and insufficient reason. That would have presented the familiar principle of a right judgment for a wrong reason.
Without intending, in this case, to intimate any opinion on the sufficiency of the bill of complainants, we feel it our duty, in the condition in which this case comes before us, not to inquire into that question. The equity of the bill not being raised by any of the assignments of error, that question, must remain res integra i n this court.
[2.] The question of the account is alone presented by tbe assignments of error. It is objected for appellee,, that this cuestión can not be considered, because there were no exceptions filed to the report of the register. The decretal'order of reference defined with precision the rules by which the register was to be governed in taking tbe account. One of those rules was, to x’ejo.ct, as not proved, all payments claimed oxithe second and third notes. The argument chiefly pressed in this court for complainants is, that large payménts should have been allowed on the *492second and third notes. It was not necessary to except to that part of the proceedings before the register, because that officer conformed to the directions contained in the decree of the chancellor. The error, if any, is patent on the fact of the decree, without resort to the report of the register. In such cases, exceptions to the report would be supererogatory.
It is further urged for appellee, that the testimony in this case is insufficient to establish the payments claimed; and that, on this account, the decree of the chancellor should be affirmed. This seems to be the ground on which the chancellor based his opinion. The proof of payments, beyond those allowed, rests mainly on the testimony of the witness Lavisson. The argument is, that the testimony of this witness is suspicious, arid is insufficient to overturn the denials in the answer. We hold, that this evidence is credible, and that it does sufficiently prove the payments claimed, for the following reasons.
[8.] The answer itself is not entirely above criticism, and does not, when fairly construed, negative the payments claimed, in such manner as to require two witnesses, or one with corroboration to overturn it. ■ Its language is: “This respondent admits that, during his life-time, the said Bobe made payments of money to him at various times, on account of the purchase-money, the consideration for said land; the terms of which payments, and the amounts, this defendant cannot specify, having kept no copies of the receipts, or memorandum of payments; but he does not admit the statement of moneys paid as charged in the bill to bo correct, but avers that the aggregate of said payments but little (if at all) exceeded the amount of principal and interest due on the first of said notes, and the additional one hundred and thirty dollars, which was to bo a cash payment.” It will be observed, that this language docs not deny that the payments exceeded the first note and the additional $130. The averment is, that the excess of those payments was little, if there was in fact any excess. What meaning the defendant attached to the expression “but little”, we have no means of ascertaining. Under the strictest rule, the an*493swor can not be regarded as a denial that the payments had exceeded the amount of the first note and interest, and the amount of the after purchase, $130.
It will be further observed, that the defendant states in his answer that he “kept no copies of receipts, or memorandum of payments.” On page 42 of the record, in the proceedings before the register, are found what are styled, “Entries from Stickney's book.” In that book, as appears from the entries, Bobe was debited with the amount of the first note, with the additional purchase of two feet front, $932 50. Immediately under this he is credited with “ cash, as per receipt given to you,” of date 1837, the several sums of $300,1 $100, $100, $5 50 ; “ allowed you on above, interest, $20;” then added, “by cash, as per my receipt, $200”; footed up, $725 50; subtracted, leaving $207 balance; and under this, in pencil, “settled above note.” It will thus be seen, that Mr. Stickney had kept a memorandum of some of the payments.
[4.] It is objected to the evidence of Lavisson, that no sufficient predicate liad been laid of the loss of the original bond and receipts, to let in the secondary evidence of their contents. AVe think the evidence of Lavisson and Mr. Smoot is full to this point.
' Wq are asked to disregard the evidence of Lavisson. AVe find nothing in the body of the deposition to cause us to distrust it. On the contrary, it is strongly fortified by the following facts: First, The answer of Stickney admits, that the paper which ho, Lavisson, produces as a copy of the title-bond, is á substantial copy, both in the body of it, and as to the note written thereon, evidencing the subsequent sale of two additional feet front. Second, The copy-bond produced by Lavisson describes these notes, corresponding precisely with the notes admitted by Stickney, and produced, in part, by him on the reference. Third, One of the papers, a copy of which is furnished by Lavisson, as taken by him from the original in the custody of the assignee in bankruptcy, is in the following form: “ Mr. Thos.' Bobe has paid, including interest on the same, for account of his first note, five hundred and twenty-five dollars and fifty cents, the same being *494endorsed on the back of said note, 14th June, 1837, (signed) Henry Stickney.” Becurring again to the “entries-from Stickney’s book”, copied in the record, we find the following:
“1837. ' - ' Or.
By cash, per receipt given to you.......■............ $300 00
ll ll ll « ll CC <£ ^ _ 100 00
a a.' a -a « ll a .................. pQQ Q0
« ll ii ll a n a .............. 5 50
“ “ allowed, you on above, interest............. 20 00-
Add those sums together, and they produce $525 50, the. amount of the receipt copied above. Immediately below the sums stated above, also of date in 1837, is another credit of $200, “ as per my x’eeeipt.” Looking into the deposition of Mr. Lavisson, we find but one other copy receipt bearing date in 1837, which is for $200, dated December, 13th. These corroborations, in our judgment, fully support the testimony of the witness .Lavisson; and we feel no hesitation in holding the facts he testifies-to to be fully proved. , '
[5.] The state of the proof in this case renders it necessary that wo should lay down certain rules for the. application of the payments made by Mr. Bobe. The first note was clearly paid in full, and we need give it xxo consideration, as none of the payments hereafter considered were or should have beeix applied to that. note. It had been, before that time, fully paid. The second note matured -Bov. 26, 1838; was put. in suit, and.reduced to judgment, March 6th, 1840, for full amount and interest* This judgment is conclusive evidence between the parties, that the amount for which it was rendered was then and there due and owing from Bobe to Stickney. The third note matured Nov. 26th, 1839, and was never sued on. Certain payments were' xxxade by .Bob.e, between the time-when the second note matured, and the time when that, note was reduced to judgment. These payments are: April 16, 1839, $500; June 22, 1839, $200; Nov. 1,1839, $50; Nov. 26, 1839, $100. Of these sums, the payment of J\me 22,1839 — $200—was applied to the secoud note,, as is shown by the face of the receipt. This payment, *495then, was lost to Mr. Bobe, by Ms failing to make defense when sued on that note. — Mervine v. Parker, 18 Ala. 241; Shep. Digest, 666, §§ 42, 46, 61, 54.
[6.] The following are rules for the application of paymeuts, when the same debtor owres the same creditor more debts than one: 1st, the debtor, making payment, has the paramount right to direct and determine on which debt the payment shall be applied; 2d, the debtor failing to give direction, the creditor may then elect on, which debt, then due in the same right, the paymeut shall be applied; but he cannot prefer a debt not due, to the exclusion of one due or over due. The election need not be shown by positive proof; it may be proved by circumstances. 3d, No direction or election, either by debtor or creditor, being shown by the proof, or doducible from the circumstanc.es, the law, on certain rules of its own, not necessary to be here considered, makes the application. Callahan v. Boazman, 21 Ala. 246; McDonnell v. Branch Bank, 20 Ala. 313; Harrison v. Johnston, 27 Ala. 445; 2 Parsons on Contr. 140-7; 2 Story on Contr. §§878 to 880; Clayton’s case, 1 Mer. 607-8; Gwynn v. Whitaker, 1 Harris & Johns. 751; Jones v. U. S., 7 How. (U. S.) 681; P. M. Gen. v. Furber, 4 Mass. 333; U. S. v. Wardwell, 5 Mass. 82; U. S. v. Bradbury, Daveis, 146; Bodenham v. Purchas, 2 B. & Ald. 39. We feel safe, however, in holding, that when the law must be appealed to for the rule of application, unaided by facts or circumstances tending to show an application either by the debtor or creditor, the payment must he applied to a debt due, in preference to one not then due.
There is no proof in this record which tends to show that Mr.'Bobe, the debtor, gave any direction as to the application of tbe following payments: $500, April 16,1839; $50, Nov. 1, 1839; and $100, Nov. 26, 1839. As to tbe payments of $500 and $50, whether we regard the election as made by the creditor or tbe law, tbe result is tbe same. They were paid before tbe maturity of the third note; and therefore, neither tbe election of the creditor, nor the intendment of the law, could apply them to the note not then due. They were payments on the second *496note; and not being used in defense to the suit on that note, they are lost to the'complainants.
[7.] As to the payment of $100, on 26th Nov. 1839, we think a different rule must govern. That payment was made on the very day on which the third note matured. The creditor having the right to make the application of that sum, we think that, by taking judgment on the second note, for the full amount for which it called, he furnishes, evidence that he had elected to place that payment on the third note.
The other payments — viz., March 17, 1840, $200; May 7, 1840, $150; Aug. 11,1840, $100; March 15,1841, $100; wore all-made after the judgment was recovered. These sums, together with the payment of f 100 on 26th Nov. 1839 — making $650 — should be allowed to the complainants, as of the dates when they were severally made.
This result renders a re-statement of the account necessary.
Decree of the chancellor reversed, and cause remanded.