1. On the trial of this claim case it appears that the claimants held under one Cobb as purchaser from the defendant in execution, and who had bought from the original plaintiff in execution. The claimants contended that a bill had been filed by Cobb against the executor of Knox,, setting up payment which Knox got for the property here levied on, and other equities, and that bill was dismissed by Cobb with the distinct understanding and agreement that this property should never be subject to these fi. fas.. The court charged that if that was so, the transferees of the fi. fas., who got them after this contract, could not sell the land levied on; but if the agreement was that Dorough should extinguish and pay up certain of the fi. fas., and he had not done it, then the property would be subject so far as this point is concerned. On this charge error is assigned. There is no error in it. Cobb swore positively that such was the contract, as he stated it, and *510Estes’ recollection was different; but all agreed that Cobb had paid all the purchase money to Knox.
It was a question of fact for the jury, and the court was .’right to submit it. If Cobb dismissed his bill, it was a .-good and valid consideration to support the agreement -..not to molest the land he bought and paid for further. The fi. fas., let it be noted, were for purchase money of a 'body of land or parcels of lands of which that levied on was part; and it is reasonable and equitable that Cobb’s part paid for should not be made to pay for the rest too.
2. It is further insisted that the court erred in charging on another point. It seems that the present transferees and plaintiffs in error here had given a bond to indemnify a purchaser of other parts of the land sold by Knox against these executions, and after the dismissal of the bill by Cobb, and the arrangement then entered into, they got control of the fi. fas. to save themselves from the breach of that bond, and levied on this land to make it pay the fi. fas. they bought for that purpose. On this state of the case, the court charged to the effect that, as the present plaintiffs in execution had by bond released a part of the land subject, and while it was levied on and could have been sold, they could not subject this part; that their conduct in so acting, if they did so act, would operate also to discharge this part of the land paid for by Cobb, and which money Knox, the original plaintiff, got.
We see no error in this charge, fully reported in the motion for a new trial, and as the facts would also support a verdict thereon, the judgment is'affirmed which denied the motion for anew trial. Indeed the points ruled in 58 Ga., 443, Tucker vs. Cornog, executor, a branch of this same transaction, must control this case. That case rendered Tucker’s part of the land subject, and Tucker is the party which these plaintiffs agreed to indemnify. Equity will not permit them now to subject Cobb’s purchase.
Judgment affirmed.