#### STEPHEN LYON *vs.*CHARLES L. CRISSMAN.

The objection, that an agreement is void, because notreduced to writing, cannot avail a party, unless he sets it up in the pleadings.

When the plaintiff avers one agreement, and the defendant sets[up another, as to the terms upon which a sheriff’s deed was made to the defendant, and *either*may consist with the fact; if the sheriff were not a party to the agreement between the plaintiff and defendant, the proof of it by parol will not violate the rule which forbids parol evidence to be received to contradict or explain a written instrument.

The plaintiff charged by his bill, filed against Charles L. Crissman, in his life time, that he purchased a tract of Iand; at execution sale, for $101; and that he borrowed of Criss-man $75, to enable him to make up the amount of the purchase money; and that, thereupon, and for the purpose of securing the re-payment of the sum so advanced, the sheriff was directed to make, and did make, a conveyance of the title to Crissman. He further charged, that he had since tendered the amount borrowed, principal and interest, but Crissman had refused to receive it and to convey the land. The latter, by his answer, admitted the original purchase by the plaintiff, and the making of the title to *him*by the plaintiff’s direction; but denied the agreement upon which the plaintiff charged this to have been done. On the contrary, he averred that when the plaintiff applied to him, immediately after bidding off the land, for the loan of $75, to enable him to complete his purchase, the defendant refused to advance the money; and, thereupon, the plaintiff not only voluntarily transferred the bid to the defendant, but lent *him*$26 to pay for the land.

After replication to the answer, the original defendant died —his representatives were made parties — and the cause was heard upon the proofs.

*J T. Morehead*for the plaintiff.

*D. F. Caldwell*and *Boyden*for the defendant.

Gaston, Judge.

The only matter in contestation is, what was the agreement upon which the plaintiff transferred to Crissman the benefit of his bid at the execution sale. The *269latter has insisted that it was an act purely gratuitous — and that Lyon was to be in no way interested in the purchase. There are several circumstances, rendering this representation highly improbable. The answer avers that the d.efend-ant had sold the land, so conveyed to him, for tobacco, and had tendered to the plaintiff his *rateable proportion,*of this tobacco. What means this alleged tender, if Lyon had no interest in the land? Again, the price bid by Lyon was $101; he was able to pay, with his own means, but $26, and applied to Crissman for a loan of $76, to enable him to complete a highly desirable purchase — and, instead of this arrangement, Crissman takes the land to himself, at $101, pays $75 with his own money, and borrowed from Lyon the $26, being the exact and full amount of all *he*had been able to get together, to make his payment. And this is alleged to be done solely to disappoint the next highest bidder to Lyon. And for the money, so lent by Lyon, there is no security.

But, the proofs are full and positive — so much so, that the only defence made at the hearing was, that no parol evidence ought to be received of the agreement. If the objection be, that the agreement is void, because not reduced to writing, and this objection could avail any thing, it should have been set up in the pleadings. But this has not been done. The plaintiff avers one agreement, and the defendant sets up another; and the parties have left it to proof which representation of the transaction is the true one. *Either*may consist with the fact of the sheriff’s deed having been made to the defendant. The sheriff was no party to the agreement, and the proof of it does not violate the rule which forbids parol evidence to be received to contradict or explain a written instrument.

The conveyance of the legal estate to the original defendant is declared good, as a security for the money advanced by him to the plaintiff; the ordinary accounts as between mortgager and mortgagee are to be taken; and the plaintiff is to be let in to redeem, on payment of what may be found due.

P.er Curiam. ' Decree accordingly.