¶1Opinion op ti-ie Court by
¶2It is manifest from the proof that Henry J. Creech sold by parol, to appellant more land than is embraced in the deed of Penington to the latter, as said deed only includes the land sold Penington to H. J. Creech, the purchase money for which was paid by appellant to Penington as per agreement between H. J. and J. L. Creech.
¶3II. J. Creech having died without executing any memorandum by which he or his heirs can be charged as to this land its value whatever it may be should be ascertained and deducted from the note sued on, unless appellee should establish by evidence the allegations of his response that he was induced to purchase said *133note by appellant; no such evidence now being in tbe case tbis allegation is unsnstained.
¶4As tbe record now stands tbe court erred in giving judgment for the remainder of tbe note deducting tbe credit and tbe judgment is reversed for further proceedings.