The plaintiff sought to recover the possession of the lands in question by ejectment. The complaint is in the usual form. The defendant answered, among other things, that the defendant and the plaintiff’s grantor-made an agreement, prior to the purchase of the property at foreclosure sale, by which the plaintiff’s grantor was to take the title; that each should pay a portion of the purchase money; and that the defendant should repay the plaintiff's grantor the amount paid by him, and be entitled to a deed. The case was tried solely upon this agreement. The jury were told that if there was proven such an agreement, and the defendant entered into and was in possession under it, they must find for the defendant. The right, by plaintiff’s grantor, in case the agreement was found by the jury, to bring an action for the purchase money paid, was stated to the jury as a reason why they should not consider the state of the accounts between the parties. The order appealed from merely corrects the judgment so as to conform to the facts hereby tried and decided in this action.
It would be inequitable and unjust to permit a finding of the agreement to decide that there was nothing due to the plaintiff’s grantor on account of the joint purchase, and where no evidence was given on the subject. The order should be affirmed, with costs and disbursements.