¶1If the defendant, Eoote, purchased the land in dispute, as alleged, with the funds of B. P. Martin, the judgment debtor, the title did not pass, and the plaintiff would be entitled to recover. The plaintiff introduced evidence tending to establish this fact, and among other things, he proved that about the time of the sheriff’s sale to Eoote, he, Eoote, had in his possession a note on one Shuford for one thousand dollars or more, which belonged to the said Martin, and had collected a part of the money thereon. It also appeared that after the 3ale and purchase by Foote, that Martin, the defendant in the execution, remained and still remains in the occupation of the premises, and further, that his receipt was endorsed on the execution for the overplus of the purchase money after satisfying Foote’s judgment, neither the amount of this judgment or of the overplus appearing from the case.
¶2There certainly was considerable evidence tending to show that Martin was the real purchaser and not Foote, and the evidence touching the “ Shuford note ” was natural in that inquiry, yet his Honor charged the jury “ that he had not fully apprehended what connection the “ Shuford note ” had with the purchase of the land.”
¶3*417A remark of this kind falling from the Court in repeating and commenting upon, the evidence, to the j ury, was well calculated to withdraw that part of the evidence from their minds, and certainly to weaken its proper weight in the chain of circumstances, tending to 6how that Foote had purchased the land for the benefit of Martin, and with funds in part derived from this “ Shuford note.”
¶4The remark, being thus calculated to mislead and prejudice the minds of the j ury, it was error, for which a venire de novo must be granted. The other points made in the case it is unnecessary to discuss now. This seems to us the main one.
¶5Pbb CuriaM. Venire de novo.