state have uniformly recognized the claim or interest of occupiers of the public lands, as estates at will, and such as are entitled to protection against disseisors, intruders, or other tortfeasors, under the act "concerning forcible entries and detainers." Such suits have often been sustained in most of the circuit courts of the state, and the right to prosecute them has been fully sanctioned by this court.

In the case of McDonald v. Gayle, Ala. 98, it was held that a petitioner, who entitled himself tenant at will, on the lands of the United States, had a right to maintain the writ of forcible entry and detainer; that the person complaining was required to set forth his estate in the land; and the term "estate" embraced the interest of tenants at will as well as other tenants. But it is argued for the defendant that the plaintiff alleges in his declaration that, prior to the institution of this suit, he had successfully prosecuted an action of forcible detainer against the defendant for the recovery of this interest; and that from this, it may be inferred the original entry was lawful and peaceable; that the plaintiff must have abandoned the premises, and consequently could have had no right to prosecute this action of trespass.

To this it is considered a sufficient reply that this averment is not conclusive as to the nature of the injury complained of; the forcible detainer may have succeeded a forcibly entry; as the plaintiff has averred his own peaceable possession, and the forcible entry and ouster of the defendant, when issue shall be taken on the facts, he will be held to proof of these essential allegations, according to the legal acceptation of the terms.

From these views we are of opinion the judgment below must be reversed, and the cause remanded.

DESHAZO V. LEWIS.

[5 STEWART & PORTER, 91.]

A WRITTEN CONTRACT MAY BE VACATED by a subsequent oral contract in reference to the same subject.

A SUBSEQUENT VERBAL ALTERATION OF A WRITTEN CONTRACT, such as the verbal extension of the time of redemption beyond that expressed in the mortgage deed, is valid and binding, if supported by a consideration.

THE facts appear from the opinion.

SAFFOLD, J. The action was detinue to recover a negro man slave, brought by the plaintiff in error against the de

AM. DEO. VOL. XXIV-49

fendant. The question presented for revision arises alone out of the bill of exceptions, taken on the trial, at the instance of the plaintiff. It states that the plaintiff gave in evidence an instrument of writing, under the hand and seal of the defendant, which purports to convey the negro man, Bachus, from Deshazo to Lewis, for and in consideration of two hundred and seventy-seven dollars and twenty-five cents.

The deed bears date in July, 1830, and expresses on its face the condition, that if Deshazo should, at any time, before the twenty-fifth day of December then next, pay to Lewis the sum of money aforesaid, then Lewis was bound, in the penalty of a thousand dollars, to redeliver the slave to Deshazo. The plaintiff also proved that one Allen, being indebted to him, verbally agreed to pay the debt to the defendant, and take up the mortgage; that about the twentieth of December, of the same year, Lewis agreed, verbally, with Allen, to wait two weeks, or even a month, longer than the time appointed for the payment of the money; that early in the ensuing January, both Allen and Deshazo offered to pay the money, which Lewis refused to accept, and that there was no other proof of any demand or conversion of the slave.

On this evidence the court instructed the jury that no verbal agreement could alter, vary, or control the written and sealed instrument; that an extension of the time of payment was a material alteration of the terms of the instrument, and could not discharge the mortgage.

This charge is the cause assigned for error. As the case was not argued at length, and is conceived to involve no intrinsio difficulty, a slight examination of the doctrine is deemed sufficient to dispose of the question. The opinion of the circuit court does not appear to have questioned the nature of the instrument, or to have denied that its legal effect is that of a mortgage only, to secure the repayment of the money. It does not object to the sufficiency of the tender, or offer to return the money at the time when it was made, nor does it deny the right of recovery on the ground that there was not a sufficient conversion or detention of the property. The decision proceeded alone on the principle that the parol agreement was inconsistent with the deed; that the former varied and altered the terms of the latter.

If such was the effect of the parol agreement, the circuit decision was correct. The general rule is, that where the terms of an agreement are reduced to writing, the instrument being con

stituted by the parties as the true and proper exposition of their admissions and intentions, it alone is the highest and best evidence of their intentions, so long as it exists in full force: 3 Stark. Ev. 1001, 1002; 2 W. Bl. 1249. But the principle is nowhere admitted that, because the parties have once reduced their contract to writing, they are afterwards incompetent to stipulate a different agreement in relation to the same matter; or if a verbal contract in respect to the same matter would otherwise be legal and valid, it is not conceded that such could not be entered into with equal effect after a written contract, on the same subject, as though the former had been the first or only agreement.

Property may be pledged, for the security of a debt, by parol agreement as well as by deed; the verbal agreement offered in evidence in this case was not to impugn, deny, or alter the terms of the original deed. It, in effect, admitted the existence of the prior contract for the payment of the money on the twenty-fifth of December, and evidenced a subsequent agreement for an extension of the time of payment; this extension of the time was not without consideration. Lewis continued to enjoy the use and profit of the slave after the time originally appointed for payment as well as before, and the use of the slave, he had agreed, was a full compensation for the use of the money.

Under the circumstances, to permit the defendant to object to the payment on the subsequent day, until which he had agreed to wait, would be to give him an advantage from his own faithless promise which may have lulled the plaintiff into an imaginary security, and caused the delay-it would enable him to profit, perhaps very largely, from his own artifice and fraud. We conceive the rules of law, alone, fully competent to prevent such injustice, and that to have given effect to the parol agreement subsequently entered into, would not have violated any established rule of evidence: 3 Stark. 1046, 1047.

The judgment must be reversed, and the cause remanded.

That parol evidence is admissible to extend the time for the performance of a written contract, see Keating v. Price, 1 Am. Dec. 92; Solomons v. Jones, 5 Id. 538; Baker v. Whitesides, 12 Id. 168.

DUNCAN v. WARE'S EXECUTORS.

[5 STEWART & PORTER, 119.]

ASSUMPSIT LIES FOR THE RECOVERY OF MONEY paid upon a judgment afterwards reversed.

THE REVERSAL OF A JUDGMENT DOES NOT ENTITLE TO A RECOVERY of money paid upon it, if it is shown that the money so paid was actually due. ASSUMPSIT for money paid upon a judgment afterwards reversed. Ware, in 1826, obtained a judgment against Lawrence, Rapelye & Co., of New York, and also one against Duncan, who had been summoned as garnishee for the sum of three hundred and seventy-seven dollars. The judgment against Lawrence, Rapelye & Co. was afterwards reversed. It was admitted that notwithstanding the reversal, the amount of the judgment obtained against Lawrence, Rapelye & Co. was actually due by them. There was judgment for defendants. Plaintiff took out a writ of error.

Goldthwaite, for the plaintiff in error.

Thorington, contra.

TAYLOR, J. This action of assumpsit was brought to recover back money collected on a judgment of a circuit court, which was afterwards reversed in this court. The suit in which the money was collected was commenced by attachment in favor of the decedent, against Lawrence, Rapelye & Co., and the plaintiff in error was summoned as a garnishee, and by an affidavit made before a justice of the peace out of court, acknowledged himself indebted to Lawrence, Rapelye & Co. in the amount for which the judgment was subsequently rendered against him, and to recover back which this suit has been brought.

We have no doubt but the action of assumpsit is the proper one to be brought in a case of the kind. All the American decisions which have been made upon the subject sustain this doctrine, and there have been recoveries in the circuit courts of this state in the same action: 6 Cow. 297; 15 Mass. 207; 1 Har. & J. 405. The only question is, do the facts of this case afford a ground of action to the plaintiff? Assumpsit is an equitable action, admitting overy defense, with but few exceptions, to which the defendant is entitled in equity and good conscience. As between the defendants and Lawrence, Rapelye & Co., in equity and good conscience, the defendants certainly are not bound to refund the money. By a judgment, which was irregu lar, and for that reason reversed, the amount of a debt justly

due was recovered and paid to the decedent. In this situation, he was not authorized to renew his suit; his debt was paid, and if Lawrence, Rapelye & Co. were permitted to recover against him, would it not place him in a worse situation than if the money had not been collected? He must wait until they recover from him, before he sues them; or, without suit, he must refund to them money to which he is justly entitled, and which they owe him, that he may be authorized to institute a suit against them, and recover the same money back again. This can not be tolerated. If an irregular judgment has been obtained, and the money recovered for a debt justly due, proof that the debt was due affords a good defense in an action of assumpsit brought to recover the money back: 1 Har. & J. 405.

But the plaintiff paid as garnishee; does this place the defendants in a worse situation? Does the reversal of the judgmeut render the garnishee liable to the defendant in the attachment? If the reversal had taken place upon the merits, showing that no debt was due from the defendants to the attachment, it is doubtful whether a payment, made by the garnishee before that reversal, would authorize him to maintain an action. His payment, under the judgment, probably would be considered a discharge of the debt to his creditor; and, if that creditor did not owe the plaintiff in the attachment, he should resort to him, and the garnishee would probably be discharged.

A debt due from a garnishee, we are inclined to think, should be considered in all respects as property of the defendant, especially after that debt has been paid, under the process of the court. But where the debt is confessedly due from the defendant in attachment to the plaintiff, we have no doubt, a payment by the garnishee, of the judgment recovered against him as such, fully discharges him from his creditor; and, therefore, that, in this case, Lawrence, Rapelye & Co. have no claim against the plaintiff.

The judgment must be affirmed.

But see Close v. Stuart, 4 Wend. 95, where it is said that after the reversal of a judgment for irregularity, a new action may be brought upon the same cause of action, though the judgment first obtained was paid prior to the reversal.