
    Davis vs. Tisdale.
    A tract of land is sold by the acre, and a bond is executed to convey it, estimating the tractto contain 197 acres. It was agreed at the time, that if there was more than 197 acres, the defendant should pay for the overplus, at the same rate he paid for the 197 acres. Upon survey there was 19 acres more: Held, that assumpsit would lie for the price of 19 acres, plaintiff having conveyed the whole tract to a third person, by the request of the defendant.
   Catron, Ch. J.

delivered the opinion of the court.

Sherwood Green proves that Davis promised Tisdale to pay him for any overplus of land more than 196 acres, at the price the 196 was .sold for, if on survey by the county surveyor, the tract was found to contain more than the parties had supposed at the time the title bond was executed. On survey, it measured nineteen acres more.

The judgment was warranted by the proof, and not hindered by the statute of frauds; because, for the sale - , , '' , , , ^ . oi the land, lisdale was bound by covenant. Davis might well have been recovered against for the purchase money, in assumpsit; Tisdale being bound by his bond for the title.

Before this suit was brought, Tisdale had, in fact, conveyed to a purchaser from Davis, and at his request.

Judgment affirmed.  