On July 1, 1883, J. W. Paulk made to J. R. Faulkner a bond for title to certain land, upon Faulkner paying to Paulk $139 on January 1, 1884. In 1885 Faulkner sold the land to Vickers, received part of the purchase money and transferred to Vickers the bond for title of Paulk, Vickers undertaking to pay Paulk the balance due him, which was still unpaid. After so transferring the bond for title, Faulkner went to Paulk, paid him and took from him a deed to the land, and Paulk subsequently refused to make Vickers a deed on demand with tender of the money he had undertaken to pay Paulk. Vickers thereupon filed his bill, March 1, 1886, against Paulk and Faulkner, from which the foregoing facts appeared, together with the allegations that Faulkner was insolvent and had refused to make Vickers a deed, but with fraudulent intent had procured the deed from Paulk and was trying to setup an independent and adverse title; and that Paulk knew of Vickers’ rights when he made the deed to Faulkner. The prayers were, that Paulk be required to make Vickers a deed in compliance with the bond, that the deed to Faulkner be cancelled, and *533for general relief. TJpon this bill, at the April term, 1887, a verdict and decree were rendered, by consent of all parties, discharging Paulk from liability, and finding that Faulkner, on payment of $159.05, should make title to the land to Vickers, but should have the use of the kind free of rent until January 1, 1888. Immediately after the rendition of the decree, a deed from Faulkner to Vickers was executed, dated April 6, 1887, and making no reference to any verdict or decree. Plaintiff paid the money as required by the decree. He afterwards brought ejectment against John A. Faulkner, who was in possession of the laud and who claimed under a deed from James R. Faulkner, his brother, dated September 16, 1886, and recorded May 3,1887. In addition to the foregoing facts, there was testimony from the plaintiff’, that defendant was present at the trial when the verdict and decree were taken, consented thereto, and was to get the money paid by Vickers under the decree; that in 1884 he heard plaintiff and James A. Faulkner talking about the bond for title; etc. ■ For defendant the testimony was, that he was not present when the verdict and decree were taken (though he was present at that term of court), had nothing to do therewith and did not consent thereto, received none of thé money paid by Vickers, bought the land in good faith and paid other land for it, not knowing of the pendency of the bill against Paulk et al., and had since been in possession making permanent and valuable improvements, and would not have traded for the land unless he had though he was getting a perfect title. The court directed a verdict for the plaintiff, and overruled defendant’s motion for a new trial. The grounds of the motion are sufficiently indicated by the head-notes.
J. H. Martin and Tom Eason, for plaintiff in error. Elisha D. Graham, contra.