(After stating the facts.)
1. In the motion for a new trial it is alleged that the court erred in directing the jury to find in favor of the defendant as to lot 83, as there was sufficient evidence to authorize the jury to pass upon the question as to whether the plaintiff had a prescriptive title, under color, to this lot. The evidence on the question of prescription as to this lot was quite indefinite; but regardless of this, the court’s direction was proper, for the reason that title by prescription to lot 83 was not set up in the petition, and of course the plaintiff could only recover, if at all, upon the case made in his petition. Upon the argument of the case before this court, counsel for plaintiff in error suggested a diminution of the record as to an alleged amendment to the petition in which a prescriptive title to this lot was set up. The clerk of the court below was required, by an order from this court, to send up a certified copy of all amendments to the petition, and in response to such order he certified that there was no amendment to the petition of file in his office, and that he had no knowledge of any ever having been in his office.
*842, 3. The deed offered by the plaintiff for the purpose of showing title, by virtue of a sheriff’s sale under the tax execution issued by the comptroller-general, was properly excluded by the court upon the objections made to its admission. The tax fi. fa. in question was issued specifically against lot 82, in district 27, section 2, Fannin county, and was in the nature of a proceeding in rem for taxes imposed upon the lot itself for given years. It could not have been levied upon any property other than this lot, nor could this lot have been levied upon under a wild-land tax execution issued against any other lot. According to the recitals, in the deed, “by virtue of wild-land tax fi. fas.,” Parris, sheriff of Fannin county, “did lately, seize the parcel of land hereinafter described as the property of the said State and County,” and after-wards sold the same at sheriff’s sale to Thompson for $46.25, and in consideration of the payment of such sum to Parris by Thompson, Willson, as sheriff, conveys the eight lots described in the deed,, one of them being lot No. 82, “with all the estate, right, title, interest, claim, and demand of the said State and County” in and to the same, to hold “in as full and ample a manner as the said State and County or their heirs and assigns did hold and enjoy, or might have held and enjoyed the same, had it not been seized and sold under the execution aforesaid.” It is clear that the deed did not follow the fi. fa. and the levy; as the fi. fa: was against lot 82 onty, for its own taxes only, and it was levied on for the same, while the deed shows that lot 82 and seven other described lots were all levied on, under various wild-land tax executions, as the property of the State and county and sold as such, and purports to convey the interest of the State and county in all these lots to Thompson, as the purchaser at such sale. And the deed apparently shows that all of the wild-land tax fi. fas. were levied upon all of the lots, and that they were all sold thereunder at one sale; in other words, that the lots were sold in bulk, and not separately, and each sold not only for its own taxes but for the taxes due upon all of the others. No reference whatever is made in the deed to the order of the court. For these reasons, the deed, as we have said, was not admissible in evidence, although the plaintiff testified that it was made after the order of the court had been granted and was the only deed which Willson, as sheriff, had made to him. Of course, the testimony of the plaintiff that the deed “was made in pursuance *85•of the order of court, passed by Judge Wellborn, as introduced in evidence,” was not admissible, as this was not a matter upon which the witness could express an opinion. The witness was allowed to testify that the deed was made after the order of the court was .granted, but whether it was made “in pursuance of,” that is, in accordance with, in fulfillment of, the court’s order, was a question for the court and not for the witness.
4. There was no merit in the general grounds of the motion for a new trial; and the court did not err in overruling such motion.
Judgment affirmed.
All the Justices concur.