¶1Opinion by The exclusion by the court of the evidence offered by the defendant reached the vital elements of the title which he set up in his defence to the land in controversy, and, under the ruling of the court upon the admissibility of the sheriff’s return and the venditioni exponas, it appears from the statement of facts, that the defendant did not offer in evidence the sheriff’s deed to him, which was made under the levy and sale, for the reason that the same objection existed to the deed as had been urged against the evidence which had been excluded.
¶2It was evidently an erroneous conception of the subject to treat the admissibility of the evidence offered by the defendant as presenting a question of variance, as technically understood, between the allegata and the probata.
¶3It was competent for defendant to establish, by any suitable and legal evidence, that the land in controversy was, in truth and in fact, the same land as that which he had bought' at sheriff’s sale under the judgment and execution which he had adduced in evidence.
¶4He might show by evidence tending to establish that end that it was, in fact, the same land, notwithstanding the existence of discrepancies contained in the media through which his title may have been assured to him.
¶5There did in fact exist a contradiction in respect to one portion of the description of the lands described respectively in the titles *406relied on by the plaintiffs and by the defendant, and it was a question of fact to be determined by the jury whether or not they both described in truth the identical same tract of land.
¶6The variance, which was pointed out in the objections to the evidence, applies to the sufficiency and weight of the evidence rather than to its admissibility.
¶7We are of the opinion that the court erred in excluding the-defendant’s evidence, and that the judgment ought to be reversed- and the cause remanded. (See Smith v. Chatham, 14 Texas, 327; Raines v. McMills, ibid, 616).
¶8We do not think that the merits of this appeal require the consideration of the other grounds assigned as error.
¶9Report of Commissioners of Appeals examined, their opinion adopted, judgment reversed and cause remanded.