Galletley sold land to Williams, in 1851, and conveyed it by an absolute deed. Galletley claims that there was an agreement by parol, made at the same time, that he might repurchase the land, without any time being fixed—thus meaning, within a reasonable time—by repaying the purchase money.
Without ever having offered to repay the money, or demanding a reconveyance of the land, he commenced this suit, in 1857, praying the privilege of redeeming it. The land had passed to third persons; so far as it appears, innocent purchasers. The case is here upon the evidence; though the bill of exceptions, not having been filed in time, is not legitimately before us.
One witness, Rouseau, with doubt, hesitancy, and want of precision, favors the plaintiff’s case; another, Williams, pointedly disproves it; another, Gavins, supports Williams, and a few others do neither side any good. The case is not made out for the plaintiff. Bashor v. Cady, 2 Ind. 582, and Cunningham v. Banta, id. 604.
Since the foregoing was written, an additional brief has been filed, claiming that the Court below erred in not granting the new trial asked for on written reasons filed; because, though the party was not entitled to a new trial on the grounds upon which he asked for it, yet he was upon one on which he did not ask it.
It is asserted that this was a suit to recover the possession of real estate, or to quiet the title thereto, and that, therefore, the party was entitled to a new trial, upon payment of costs, at any time within a year, as a matter of right. If the counsel is right, in these positions, the party had nothing to do but to go and pay the costs within the prescribed time, and then claim his new trial. He need not have troubled the Court with any previous prayer for it. But we do not very well see why the Court was bound to give him a new trial on grounds upon which it was not desired, nor how the Court *469could have allowed it to him, on the ground claimed by counsel, without he first paid the costs.
E. Dumont and James Hughes, for appellant. W. M. Franklin, J. E. McDonald and A. L. Boaohe, for appellees. . Per Curiam.The judgment is affirmed, with costs. (