
    No. 28.
    Thomas Bryant, plaintiff in error, vs. Harrison Hambrick, defendant.
    
       A declaration or answer may be amended at any time before the case is finally submitted to the Jury, if the principles of justice require it [2.] The judgment, and not the execution issuing thereon, is the proper subject matter of set-off.
    
       In an action on a bond for titles, the measure of damages is the value of the land at the time when the title should have been made.
    
       By making a proper case in Equity, a vendee, legally evicted, will be entitled to recover the value of the beneficial and permanent improvements put upon the premises.
    Debt on bond for titles to land, in Troup Superior Court. Tried before Judge Hill, May Term, 1850.
    This was an action of debt brought upon a bond made by Hambrick, the defendant in error, to Bryant, the plaintiff in error, in the penalty of Jive hundred dollars, and conditioned to be void when Hambrick should make good and sufficient titles to Bryant to lot of land No. 3, in the 12th district of Merriwether County.
    • On the trial of the cause in the Court below, the plaintiff proved that he purchased the land of defendant for two hundred and fifty dollars; that he had gone into possession, and made improvements worth $400, and that the land had increased in value to $450, making the premises worth $850; that in 1846, he was evicted from the land, in favor of a third person, by due process of law.
    The defendant then offered in evidence an execution against plaintiff and one Obadiah L. Bryant, for the sum of $121 50, principal, with interest from 31st August, 1844, to the admission of which, counsel for plaintiff objected, on the ground thát there was no plea to authorize its admission.- The Court sustained the objection, and defendant’s counsel then moved the Court to amend his plea, instanter, by inserting a plea of set-off, to which-counsel for plaintiff objected. The Court overruled the objection, allowed the plea tó be amended and the execution to be read to the Jury as a set-off. To all of which, counsel for plaintiff excepted.
    The Court charged the Jury, “that the measure of damages in this case was the purchase money, with interest from the time the notes given for the land became due, and that they could not take into consideration the value of the land nor the improvements.” To which charge, the counsel for plaintiff excepted, ■
    And upon these several exceptions has assigned error.
    W. Dougherty, for plaintiff in error.
    Dull and Ferrell, for the defendant.
   By the Court.

Lumpkin, J.

delivering the opinion.

We think the Circuit Judge was right in allowing the defendant’s plea to be amended, but that he erred in permitting the execution to be read to the Jury as a set-off.

Instead of the ft. fa. the judgment, upon which it issued, should have been tendered in evidence.

Nor do we concur in the opinion, that the purchase money, with the interest thereon, is the measure of damages in an action on a bond for titles to land. Such a rule would tempt the vendor, in any case where the property increased in value, to violate his contract. The proper criterion is, the value of the land at the time when the title should have been made. Davis and Smith (5 Kelly & Cobb, 274,) was for the breach of a covenant of warranty.,of title, and, therefore, distinguishable from the present case.

If the vendee and obligee is not content with this measure of compensation, he may go into Equity and compel a specific performance of the contract. Or if that is rendered impossible, as in the present instance, for want of title in the vendor, he may, by making a proper case, move in a Court of Chancery, and have a suitable allowance made him for his improvements. See Martin vs. Atkinson, 7 Cobb, 228.

Judgment reversed.  