delivered the opinion of the court.
The defendant having placed on the tableau Jane and T. I. Hughes, as hypothecary creditors of the estate, Pargoud, another creditor, made opposition, on the ground, that the debt claimed by the former, and secured by special mortgage on a tract of land, had been paid and extinguished. The opposition having been sustained by the court, the mortgagees appealed.
Without positive evidence of an agreement to the contraiy, the court will not presume that a paymentwas imputable to a mortgage debt not due at the timeitwas made, although it is the most onerous.The suxn of six hundred dollars claimed by the appellants, was due one half in March, 1833, and the balance in March, 1834, and bore an interest at eight per cent. They held at the same time the promissory note of the deceased, for twelve hundred and fifty dollars, which was due in 1832. The only evidence to show the extinguishment of the mortgage, consists of the statement of a witness, that five hundred dollars were paid, evidently, before the first instalment on the mortgage was due, and while the appellants were holders of the note ; and that one of the original obligees, of whom the appellants are the heirs, told him that the mortgage was released. This payment was evidently made in 1832, and appears to have been credited on the note for twelve hundred and fifty dollars. Without positive evidence of a contrary agreement, we cannot presume that the payment was imputable to the mortgage debt, which was not due at the time. No such agreement is shown; and evidence of the loose confession of a deceased person ought to have very little or no effect, particularly when contrary to the rights of the parties, as shown by written evidence. In addition to this, it appears, that in a former proceeding in the same court between the same parties, the credit of five hundred dollars was allowed on the note. We are, therefore, of opinion, that the Court of Probates erred in sustaining the opposition.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided, and reversed, the opposition rejected, and that the opposing creditor pay the costs in both courts.