delivered the opinion of the court.
The plaintiffs, heirs at law of Levi Wells, deceased, claim a tract of land in the possession of the defendants.
The answer admits that the land claimed once belonged to the plaintiffs’ ancestor, but that ■ the defendants acquired title from him by an act of sale for the price of three thousand dollars, which they duly paid.
There was judgment for the defendants, and the plaintiffs appealed.
The appellees introduced a document styled, “memorandum of an agreement, and bargain, and sale,” between the plaintiffs’ ancestor and one of the defendants, in the year 1808, by which the former sells to the latter, all his right, title, and interest, in and to the premises, for the sum of three thousand dollars, payable in three annual instalments, on the first days of January, 1810, 1811, 1812 ; and it was agreed, that the title to the premises should remain in the plaintiffs’ ancestor, until payment be' fully effected. That the defendant should, at his own risk, proceed and continue to improve the premises and cultivate them, without the vendee being liable on that account, or in case the title to the premises should fail.
The appellants complain, that the district judge erred, in allowing parole evidence of the payment: and his counsel has relied on and has contended, that as the vendor did
not give his assent to the vesting of the title, until payment, proof of payment is proof of his assent; which cannot be established, without a private or public act.
It is clear the deed establishes a sale which depended on the performance of a condition, the payment of the price. This, like every other fact, was susceptible of being proved by witnesses. If a conveyance is made, on condition that *168the alienee shall build a house, proof of the condition must necessarily be made by witnesses.
The appellant has urged, that admitting parole evidence to be proper, the judge has drawn an erroneous conclusion from it; and that there is no proof of payment.
The appellees ha.ve produced, in evidence of payment, their vendor’s receipt for one thousand dollars.
They have introduced two witnesses, who depose that the plaintiff’s ancestor told them he had received full payment for the land.
The appellant’s counsel has conceded that a payment of.one thousand dollars was made, as evidenced by their ancestor’s ¡receipt.
He has contended, that as to one of the witnesses who deposed to the admission that payment was received in full, very little credit ought to be given to his deposition ; because he swears that shortly after the payment evidenced by the receipt, was made, the vendor said it was .in full payment, which the receipt says it was on account.
As to the other witness, he is a brother of the defendants, and it is proved, that he declared in conversation, that “he knew nothing himself about the payment of the land by his brother, but thought the debt must have been paid, and Miller knew of the payment,”
A witness who relates the declarations of a man, who has ceased to live, made in his, the witnesses’ presence, out of that of any other person, has nothing to apprehend of a conviction of perjury. He has nothing to fear from human laws, consequently his testimony cannot command that confidence, which results from the danger, to which witnesses express themselves in other cases.
In the present case, suit is brought eighteen years after the last instalment became payable. But the death of the plaintiffs’ ancestor three years after, and the minority of the plaintiffs afterwards, lessen the presumption of payment, which results from this long delay.
The testimony of the two witnesses cannot, notwithstanding the objections to their credibility be set down as nought. They swear positively. If the ancestor of the plaintiffs wa; *169not a man of business, he may well have given a receipt for the last instalment on account, instead of in full payment. The presumption that he did so, is stronger than that a man whose character stands unimpeached and is perfectly disinterested, did forswear himself. The brother might have been ignorant of the fact that his deposition of the vendor’s confession could establish the payment. He declares in the conversation referred to, that he knew nothing of the payment himself; he believed it was made, and Miller could prove it.
But a third witness, Miller, corroborates the deposition of the two first. He was an intimate friend of the plaintiffs’ ancestor, and one of the executors to his will. He declares he has always been under the impression, the debt was paid to the plaintiffs’ ancestor, and is not sure it did not pass through his hands. At the death of his testator, he would surely have looked to the payment of that debt had he not been convinced that it was paid. Wells was at the time, as Miller informs us, pressed for money, and the defendants fully able to pay. They are sworn to be punctual in their dealings.
It is in evidence that one of the defendants was co-executor with Miller to the plaintiffs’ ancestor. This mark of his con- * , fidence, three years after the last instalment become payable, weighs a little as a presumption that the debtor had not neglected his duty towards his creditor and friend in the time the latter was in need.
Facts that may afford presumptions of payment, acquire force as the day of payment becomes more distant — mis acquirmt mndo.
In the present case the district judge has concluded that the payment was made. He had the positive testimony of two witnesses, of whose credibility he was a better judge than we can be. Strong presumptions added to this, determined him in favorem solutionis, which is favored in law. In such cases we have generally, if not universally, conformed our judgment to his.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.