This was a claim case growing out of the levy of an execution against Varnell, on a lot of land, number three hundred and eleven, in the eleventh district, third section of Whitfield county, to which Henry Brooker claimed title. Upon the trial of the case the jury, under the charge of the court and the evidence submitted, found the land not subject, and for the errors alleged to have been committed on the trial the plaintiff in ft. fa. excepted.
Though there was much evidence introduced, and the-record necessarily voluminous, we think the law of the case neither doubtful nor involved in obscurity by the multiplicity of facts which surround it.
J. W. Bacon sold this land to J. W. & W. H. Brooker,. who paid part of the purchase money, gave notes for the balance and took a bond for title. Afterwards the land was levied on and sold as Bacon’s, bought by B. F. Prater, to whom the sheriff made a deed. He agreed with the Brookers, who had requested him to buy it in order that they might save themselves, to pay for it and let them have it upon their payment to him of the purchase money, which agreement was put in the shape of a bond to convey the land to them whenever they paid back tollina the money thus expended for the land. They failed to pay him, and it was agreed between them that R. N. Varnell pay Prater for the land, take the title, and they would give him their note for the money, specifying the consideration therein. Varnell, on the sixceenth day of November, 1874, paid of his own money the amount which Prater paid for the land and took a deed therefor. So that on that day he had a clear, undisputed legal title-in himself to this lot of land, with the purchase money all paid, coming down to him from Bacon, the vendor, to-the Brookers, who had endeavored, and were still endeavoring, to protect the money which'they had put into the *765land when they bought it from Bacon, But their real trouble was, that neither Prater nor Varnell was under any binding legal obligation to. convey to them the land when they should pay the amount that was paid for the same at the sheriff’s sale. The bond was but a voluntary agreement without consideration, and therefore not binding upon Prater, and Varnell never received a dollar, or the promise of one, for the conveyance which he was to make.
Even if that view should be considered untenable, the legal effect of all that was done did but carry Bacon’s title, and that of those who held under him, into Prater and then into Varnell, with a verbal promise, unsupported by any consideration, to convey the land to the Brookers if they should pay him the money therefor which he had paid to Prater.
Supposing, however, his promise to be binding upon him as to the Brookers, yet whilst the title was thus in him, to-wit: on the twenty-second day of May, 1875, Lanier, the plaintiff in fi. fa. in this case, obtained the judgment against him upon which this execution issued, and with which the levy was made upon the land. Varnell then by the proof was the real owner of the land, holding the title, with the purchase money paid out of his own means, from November, 1874, to August, 1875.
Admitting that the Brookers could have forced Varnell to have conveyed the land to them, it could have only been done upon the payment to him of the full amount of money which he paid for his title. It was his till they redeemed.
The claimant rested his title upon a deed made by the sheriff, who had sold this land as the property of the Brookers, which deed was dated November 2d, 1875, and upon the record of an action of ejectment brought by J. D. Oxford, the grantee of Varnell. It is to be remembered that the land was sold as Bacon’s, their vendor, in April, 1874.
*766The facts of this case put it outside of both the letter and the spirit of the act of 1871-2. The Brookers, under that act, never had any mortgageable or fee-simple interest in the land which they could have conveyed to Prater or Varnell. They never could have brought themselves within its operation without having title, and even if they had had title, and conveyed it to the judgment debtor, the lien of such judgment would have attached, unless they had kept themselves within the provisions and were protected by the act referred to.
Taking the case as it is—suppose that on the very da3^ when this land was sold, after Prater had bought, paid for, taken the deed, and given his bond as he did, a fi. fa. against him had been levied upon itvwhat would have prevented its sale? Nothing that appears in this record. When Varnell, against whom there was an execution, got the title and paid the money for it, there was nothing higher in his title, as shown by the record, to prevent the levy and sale in satisfaction thereof.
Our judgment, therefore, is that the charge of the court was error—the admission of the record in the ejectment suit improper, and that the judgment be reversed.
Judgment reversed.