The opinion of the court -was delivered by
Mr. Justice Norton.This is an action of debt on judgment, commenced 22nd December, 1890. The answer pleads payment. No reply was filed. It follows that any testimony in rebuttal or avoidance of the plea was admissible. There was but one conflict in the testimony, viz., defendant testified that he gave up to plaintiff her note in payment of the judgment sued on and took her receipt therefor, and plaintiff testified that there was no such transaction. The jury accepted defendant’s as the true version and found a verdict for defendant.
To this court, on this appeal, the facts are that defendant, as executor of R. M. Puckett, sold to plaintiff, on 1st January, 1862, a negro for $800, and took her note therefor, bearing interest from day of sale; that afterwards Nancy L. Vance and Henry C. Puckett called defendant to account, in the Probate Court, for his executorship without making any of the other legatees parties; that that suit resulted in a judgment against defendant, 18th December, 1873; that each of five legatees (among whom the plaintiff in this action is named as one) be paid $482.59 by defendant. In the statement for settlement defendant is charged with plaintiff’s said noteat $266.66; that no part of the note was in fact paid ; that in pursuance of an agreement to that effect, on 1st May, 1875, defendant gave to plaintiff her said note in payment of the amount due by said judgment of the Probate Court and took her receipt, not under seal, acknowledging such payment. Defendant was held entitled to open and reply in evidence. Judgment was rendered for defendant, and plaintiff appeals.
1 Her 1st exception is to the granting of the opening and reply to the defendant. The case of Addison v. Duncan & Clinkscales (ante), decided at the present term, reaffirms and settles the principle that if, upon the pleadings alone, the plaintiff be entitled to recover the whole cause of action set forth in his complaint, then the defendant is entitled to open and reply in evidence and argument. Applying this test to the case in hand, we *185find that if no evidence had been offered, plaintiff would have been entitled to recover. Defendant admitted the facts from which his indebtedness to plaintiff' followed as a legal conclusion, and the presumption was that no part thereof had been paid. The plea of payment did not rebut this presumption; to do so 'required evidence. In passing we note in the complaint an allegation that defendant recently promised to pay the sum alleged to be due, and in the answer a denial of this allegation. Whether this allegation were true or false, in no way affected the right to recover or the amount of the recovery; these were fixed by defendant’s admissions, unless he had paid the debt, and if he had, then there could have been no recovery, even if there had been subsequent promises to pay it, without any new consideration, which is not alleged. This allegation and its denial are immaterial. Plaintiff’s 1st exception is overruled.
We do not understand the judge to have charged that anything “short of payment could discharge the liability” of defendant for the debt sued for. Plaintiff's 2d exception is overruled. The 9th and 10th exceptions were abandoned at the hearing.
2 The 3d, 4th, 5th, and 8th exceptions together allege error in the charge that in 1874 plaintiff owed the note, because the proceeding in the Probate Court showed that it had been previously paid, and the judge should have so charged, or because, at the very least, that was an issue of fact upon which the jury should have been permitted to pass without an expression of his opinion. Plaintiff’s contention that it was the duty of the judge to interpret the record from the Probate Court is correct, and the other above stated facts in regard to the note not being controverted, the judge did not err in assuming them to be true, and announcing his conclusion of law that “she owed that note,” unless he erred in his conclusion as to the effect of the proceeding in the Probate Court. Robinson v. Robinson, 20 S. C., 568, decides that an administrator, by charging himself in the settlement of an estate with a note belonging thereto, and paying the shares thus found due to the distributees, becomes the owner of the note, and may collect it from the estate of the maker. The charging of himself with the note of the plaintiff in the proceeding in the Probate Court cannot, therefore, be construed *186as a payment of it to defendant. The 3d, 4th, 5th, and 8th exceptions are overruled.
3 The 6th, 9th, and 12th exceptions allege that the judge did not, but should have, charged that the value of the note was fixed by the Probate Court at $>266.66, and that it ought not to have been credited at more on the debt sued on as so much money would have been, notwithstanding the agreement to receive it in full satisfaction. If the facts assumed in this position be true, then in Bolt v. Dawkins (16 S. C., 198) we find that intestate owed James B. Dawkins a sealed note which was cancelled and surrendered for a new unsealed note of a smaller amount. The court held that it was a question of intention whether the transaction operated as a satisfaction of the former, and says: “The fact that the new security was a smaller amount and of inferior rank does not alter the result.” We do not think 'that the facts of the case in hand differ in principle. The question of intent to exchange the one debt for the other was fairly submitted to the jury. The 6th, 9th, and 12th exceptions are overruled.
4 Plaintiff argues that the transaction is so “advantageous to the defendant, a fiduciary,” that it will not be allowed to stand against her, a beneficiary. But she does not allege in pleading nor in evidence, nor even in argument, that she had not the fullest information, nor that she was in any way influenced except by her own sound judgment. This court will not, after fifteen years acquiescence by the parties, open a settlement which appears to have been voluntarily and intelligently made, though it may have been advantageous to a fiduciary. If the transaction be annulled, it must be done as a whole. Then the only semblance of a link connecting plaintiff with the proceedings in the Probate Court would be broken. The question would then be whether the note would be equal to the plaintiff’s interest in R. M. Puckett’s estate. Prom the evidence before us we think the settlement in this view advantageous to plaintiff.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.