after making the above statement of facts, rendered the following opinion of the Court:
Although under Law 3, Title 10, Partida 6, and Article 901 of the old Civil Code, concordant thereto, as also the doctrine of the Supreme Court of Spain cited in the first allegation of the appeal, the functions of executors depended on the powers which testators saw fit to invest them with in *187the testamentary clauses referring to their appointment as such, and according thereto, executor Morales in executing the deed of sale of the house in question in favor of Chava-varry, acted fully within the powers conferred upon him by the testatrix Carmen Grau in the ninth clause of her will, yet, from the moment said deed was executed, wherein it was finally determined what disposition should be made of the seven thousand pesos, balance of the purchase price left in the hands of the vendee subject to the outcome of the injunction prohibiting alienation of said house, which sum was to be paid to the heirs of Carmen Grau as soon as aforesaid injunction had been dissolved, and the vendee in the meantime to pay monthly to said heirs the stipulated interest at the rate of six per cent per annum thereon, it is evident that with these acts of the executor and the steps which in the deed he had agreed to take looking to the dissolution of the injunction, his trust in connection with the sale of the house had come to an end, and he could no longer legally go against his own acts, and thus leave without effect what had solemnly been agreed upon in the deed as to the delivery of the unpaid balance of seven thousand pesos, and interest thereon, to the heirs; therefore the Court below in so deciding, did not contradict itself nor violate the laws and other legal provisions cited in the first and second grounds of the appeal. Nor have Laws 3 and 5, Title 14 of Partida 5, and Articles 1156, 1162, and 1163 of the Civil Code, concordant thereto, cited under grounds III and IV, been violated, inasmuch as the vendee, Bernabé'Cha-varry, having bound himself in the deed of sale in question to pay the outstanding seven thousand pesos, and stipulated interest accrued thereon, directly to the heirs of Carmen Grau, he had to make said payment to them as the only creditors in whose favor the obligation was constituted, and not to the executor José Pablo Morales, whose capacity to effect the collection of that part of the price had already ceased by virtue of the reservation in favor of the heirs made in the deed. Whence it is further to be inferred, that neither the exe*189cutor José Pablo Morales was the holder of the credit, as alleged by counsel for appellants, nor could the debtor Ber-nabé Chavarry, have paid it to him in good faith, since he must have been aware of his agreement made in the deed, to pay said debt with the stipulated interest, to the heirs of Carmen Grau as soon as the condition agreed upon had been fulfilled, and, therefore, the-payment made by the debtor Bernabé Chavarry, to the executor Morales, does not relieve the former, or his estate, from the obligation contracted by' him with regard to the aforesaid heirs. As to the error of law in the consideration of evidence, on which the fifth ground of the appeal is based, the Court below, far from violating Articles 1248, of the Civil Code, and 658 of the Law of Civil Procedure, in not attaching any importance to the statements of the witnesses Mauricio Guerra Mondragón, José Antonio Gutierrez, Julián Blanco and Euelides Jimenez, has correctly applied said legal provisions, by which Courts of Justice are allowed a wise discretion in the consideration of the probatory value of the testimony of witnesses, with no limitation other than the rules of sound judgment, none of the 'provisions cited having been violated, inasmuch as the testimony of the aforesaid witnesses was limited to the statement that the executor José Pablo Morales was held by them iri high esteem and that they believed him incapable of appropriating to. his own use money received by him for a specified purpose, the Court below could not logically consider said declarations as sufficient evidence that said obligation had been complied with by the executor, since none of the witnesses had affirmed that he had really complied therewith, and the matter was especially one in which public documents, acquittances and other vouchers are generally availed of by executors to justify their accounts and at all time relieve themselves from responsibility tor sums received by them for distribution among legatees and heirs. As regards the violation, which is also alleged, of Law 68 Toro, namely, the 5th, Title 8, Book 11, of the “Novísima Re-*191copilación’’, and of Articles 1114 and 1969 of the old Civil Code, inasmuch as it was expressly stipulated in the deed of sale of January 22, 1877, that the seven thousand pesos, balance due on the price, was to remain in the hands of the ven-dee Bernabé Chavarry, subject to the outcomé of the injunction prohibiting alienation wherewith the house was encumbered, and that the heirs of Carmen Grau could not dispose of said sum until 'the dissolution of the injunction had been secured and “confirmed by means of the cancellation thereof” and after a month’s advance notice, which stipulations were agreed to bjr the vendee in all particulars, Bernabé Cha-varry, who thus bound himself to comply with the obligation in so far as it concerned him, and especially to abide by the result of the injunction which constituted an encumbrance upon the said house, until its final legal dissolution, it is evident that until the cancellation of the said injunction had been entered in the Registry of Property, the obligation on the part of the vendee to make payment did not become effective, nor were the heirs in a position legally to demand of him the fulfillment of said obligation, both because such was the agreement entered into in the deed, and because the injunction not being dissolved, operated to the prejudice of third persons until the cancellation thereof had been recorded in the Registry of Property, so long as this was not done, the house did not stand released from the encumbrance, nor was the vendee relieved from responsibility in that respect, and, therefore, inasmuch as from the date of the record of dissolution of the injuntion, February 23, 1881, to that of the admission of the complaint, October 11, 1900, since the date on which the same was filed is not on record, the twenty years required by Law 63 of Toro, namely, the 5th, Title 8, Book 11, of the “Novísima Recopilación”, for the prescription of personal actions, which is the nature of the suit prosecuted by plaintiffs, have not elapsed, the Court below in sustaining the complaint, instead of violating aforesaid Law of the “Novísima” and the Articles of the old Civil *193Code, cited in the seventh and final point urged by appellants, has, on the contrary correctly applied them.
We should declare, and do declare, that the appeal in cassation for violation of law, taken by Tomasa Lopez Dominguez and her children Romualdo, Josefa, Bernabé and José Chavarry y Lopez, does not lie, and tax the costs against them.
Messrs. 'Associate Justices Hernandez, Figueras and Mac-Leary, concurring. Mr. Associate Justice Sulzbacher, dissenting.