We are of opinion that the court below erred in sustaining the exception of the defendants to the amendment of the plaintiff filed on the 8th of November, A. D. 1859. That amendment alleged that when Joseph A. Smither purchased the premises in question from W. J. Viser, he undertook, as a part of *546the consideration- of the purchase, to pay the judgments against Viser in favor of Branch and Frisby, under which judgments the plaintiff claimed title as purchaser. If this were so, then, although the judgments might not, perhaps, have been a lien on the premises in question as judgments, the plaintiff would have had a lien upon the premises to the amount of the judgments, after he had satisfied them, which lien he vrould be entitled to enforce. We have doubted the propriety of reversing the judgment for the error of the court in sustaining the exception of the defendants to the amended petition or replication, because the error does not seem to be relied on, and it would not be a violent presumption, from the whole record, that the plaintiff could not establish by proof, the-allegation to which reference has-been made. But the error is-assigned and is not expressly waived, and we deem it most proper to give the appellant the benefit of the assignment of the error. We perceive no error in the charge of the court below to the jury; nor was it error to refuse the instruction asked by the counsel for the plaintiff below, because the facts in evidence did not warrant such an instruction.
The judgment of the court below is reversed, and the cause remanded.
Reversed and remanded.