Opinion of the Court by
Judge Williams:This was a sale of a small tract of thirty odd acres of land by appellees to appellant, Mrs. Hukel, for four hundred dollars paid at the time of the trade, $452 to be paid the following December 25th, when the deed was to be made, and $852 to be paid at a future designated day.
The first deferred payment not being made, this suit was brought to enforce a lien on the land and for judgment of sale with a tender of deed.
The defendants objected to a reception of the deed, alleged their ignorance of the title and demanded an exhibition that it might be ascertained whether the vendors could make them a good title before the contract be specifically enforced. A survey was called for and ordered by court, after making of which an amended answer was put in alleging that for the first time said survey had developed that the boundaries of the land were not such as represented to them, that a certain fence was represented as being on said *540tract and the line, whereas it was several rods from the line and off the land, and that the garden containing about three-quarters of an acre, represented as part of the premises, did not belong to the tract, but had been taken possession of by. its owner, that there was a deficiency of several acres in the tract, all of which was averred to be worth $350, and they asked a deduction.
Hodges, for appellants. Alexander, Turney, for appellees.The same day of the filing of this amended answer, and over appellant’s objection, a submission for trial was ordered and the plaintiffs confessing the loss of the garden a pro rata reduction for it was made and appellants adjudged fo pay the remainder and a sale ordered.
The whole proceeding is erroneous. The amended answer made new issues, which by the provisions of the Oivil Code were not to be tried until the next term, as the answer was filed unconditionally.