#### Jonas Weatherford, Appellant, v. Josephus Cunningham, Appellee.

AGREED CASE FROM MORGAN.

Where A. purchased from B. one hundred acres of land, for the sum of $1,700.00, before conveyance A. sold half the land to 0. for $850.00, but C. agreed to pay B. $180.00 for a choice of halves of the land to B. and the land was conveyed upon these terms : Held, that B. was to pay $670.00, and 0. $1,030.00, for their respective halves of the land.

This cause, by agreement of parties, is certified to the Supreme Court, to be reviewed on the following agreed case, to wit:

Plaintiff contracted with one Lewis Massie, for sale and conveyance of 100 acres of land for $1,700. Before the execution of a deed to him, he sold one half of the land to defendant, at the same rate as above, who agreed to pay Massie $180 for choice of the halves of the land; and they, plaintiff, defendant and Massie, agreed that the plaintiff was to execute deeds to them respectively, and that the defendant was to pay the $180 to plaintiff. He executed a deed to the defendant for the consideration of $1,030, and to Massie for the consideration of $670. Of the $1,030, the defendant paid the plaintiff $940, and refused to pay any more. Massie paid the $670, the consideration of the deed to him. Plaintiff sued the defendant for the $90, before a justice of the peace, and recovered a judgment for the same and costs; from which the defendant appealed, and the judge of said court, by consent, without a jury, tried the case, and reversed the judgment of the justice of the peace, and gave judgment in favor of the defendant for costs in this and the Justice’s Court. From which judgment of reversal, the plaintiff appealed, and executed appeal bond for the next term of the Supreme Court of this State; when and where said judgment of reversal is to be reviewed on this agreed case, without any other or further record; and without exception to any matter of form. And so this case is to be certified by the clerk of said court, to the Supreme Court of this State for the next January term.

Cyrus Epler, for Appellant.

D. A. and T. W. Smith, for Appellee.

Breese, J.

The price of the land as agreed, was seventeen hundred dollars, of which Massie and Cunningham were to pay to Weatherford, equal portions, that is, eight hundred and fifty *152dollars each. To secure the choice in the division of the land, Cunningham agreed to pay Massie one hundred and eighty dollars, and by a subsequent agreement, to pay it to their common creditor, Weatherford. This sum of one hundred and eighty dollars, paid by Cunningham to Weatherford on Massie’s account, reduced Massie’s indebtedness to him to six hundred and seventy dollars, and increased Cunningham’s by the same amount; he is to pay Weatherford, therefore, the price of one half the land as originally agreed, plus one hundred and eighty dollars for the choice, making the amount due from him to Weatherford, ten hundred and thirty dollars. Suppose Cunningham, instead of buying of Massie one half the land, had bought of Weatherford, and agreed to pay him one hundred and eighty dollars premium for the choice. Clearly he would owe Weatherford $850, plus $180—in all, ten hundred and thirty dollars.

The judgment of the Circuit Court is reversed, and judgment entered here for ninety-four dollars and fifty cents, the balance due with interest, in favor of the appellant.

Judgment reversed.