
    John L. Creech v. John E. Smith.
    Land — Parol Sale — Purchase Money Refunded.
    A party having sold, by parol, more land than was embraced in his deed and there being no memorandum by which his heirs could be charged, the purchase’ money having been paid, its value should have been ascertained and the amount deducted from the price of the land to which deeedant had title.
    APPEAL PROM HARLAN CIRCUIT COURT.
    December 13, 1867.
   Opinion op ti-ie Court by

Judge Williams :

It is manifest from the proof that Henry J. Creech sold by parol, to appellant more land than is embraced in the deed of Penington to the latter, as said deed only includes the land sold Penington to H. J. Creech, the purchase money for which was paid by appellant to Penington as per agreement between H. J. and J. L. Creech.

II. J. Creech having died without executing any memorandum by which he or his heirs can be charged as to this land its value whatever it may be should be ascertained and deducted from the note sued on, unless appellee should establish by evidence the allegations of his response that he was induced to purchase said note by appellant; no such evidence now being in tbe case tbis allegation is unsnstained.

James, for Appellant.

Dishman, for Appellee.

As tbe record now stands tbe court erred in giving judgment for the remainder of tbe note deducting tbe credit and tbe judgment is reversed for further proceedings.  