¶1delivered the opinion of the Court.
¶2There is but one plea in this case, and that does not set up the appeal from the land court at Little Rock, and the pendency of the petition at Washington City; but, after setting out the consideration of the covenant, simply denies the dismissal of the pe1-tition and the failure of the heirs in the land court at Little Rock. An}' question then as to the appeal, was without the issue that was formed, because the appeal and its pendency could not have possibly shown that there was no failure of the petition of the heirs and nó dismissal of their petition in the land court at Little Rock, but the contrary. Had these, however, been insisted upon by way of avoidance, the question discussed by counsel for the plaintiff in error as to the true construction of the covenant sued upon, would have been raised. As it is, there is no question in the case, but that which was found by the jury for the plaintiff below upon abundant evidence.
¶3Finding no error in the judgment, it must be affirmed.