An action of ejectment was brought by Mrs. Nettie Goodbread for the use of S. C. Cole, against H. R. Thomas, who pleaded not guilty. The jury found for the defendant and the following judgment was rendered:
“This cause having been tried at the last term of this court, which "trial resulted in a verdict for the defendant, and the plaintiff made a motion for a new trial, which motion was by the court continued until this present term of this court, and the same being further argued, the court *664overruled said motion, whereupon, it is considered, ordered and adjudged by the court, that the plaintiff take nothing, by his said suit, and that the title to the property sued, for, the Ej4, NE% Section io, and West ^ of NWJ4, Section Eleven, all in Township 2, S. Range 17 East is in the said defendant, and that he is entitled to the possession thereof” &c.
On a motion for new trial by the plaintiff the following order was made:
“November 2nd. Motion for a new trial made and argued, and upon consideration it is* ordered that the motion be granted on the first day of the next term of court, unless in the mean time, the defendant shall pay plaintiff the amount due on the mortgage, with principal, interest and attorney’s fees, and the sum of one hundred dollars, with interest mentioned in equitable plea tendered, and if these payments be made the motion will be overruled.
“On 4/27/16, motion denied.”
The plaintiff took writ of erro.r.
At the trial the plaintiff showed a legal title to the land in controversy and the value of mesne profits.
The defendant offered testimony as to an agreement with the usee'thfit the lands, which were sold under an execution obtained by A. S. Goodbread against the defendant, would be bought in for the defendant who had previously mortgaged the lands to the usee. There was other testimony as to the desire of the defendant to buy the land after it was sold under the Goodbread execution to Mrs. Nettie Goodbread.
As the judgment “that the title to the property sued for * is in the said defendant,” is not in accord with the evidence and is not a proper adjudication in this case, and as the conditions imposed by the order denying a new *665trial were unauthorized, and as the verdict is manifestly contrary to the evidence, the judgment is reversed..
Browne, C. J., and Taylor, Shackleford, Whitfield and Ellis, JJ., concur.