#### Turner *et*al., executors, *vs.*Rives.

1. It is doubtful whether a recovery could have been had on a declaration to recover land, containing a description of the land sued for in these words: *“*Part of a tractof two hundred and twenty acres, between Port creek and Shoulder Bone creek, bounded on the north by lands of Willie Adams, on the east by lands of Boss and Carpenter and on the south and west by lands of said Bivesbut no point was made on it by demurrer or otherwise.

2. The defendant had the right to file an equitable plea, setting up a contract of sale by a decedent, whose executors were the plaintiffs, to a third party or his assigns; that it had been assigned to the defendant; and that all the purchase money had been paid; and he could compel a specific performance of such contract from the plaintiffs, an offer to recind by defendant having been refused by them.

3. The contract from the, testator of plaintiffs contained the following : “Bec’d . . of George R. Brown two thousand dollars in full payment for two hundred and fifty acres of land lying in Hancock county, adjoining lands of Willie B. Adams, Boss, George S. Bives and Thomas M. Turner, known in the late survey of the lands of Thomas M. Turner as the James M. Hunt place, 175 acres, and the seventy-five acre tract on the west side of Port creek; possession of lands given this day to said George B. Brown, together with the right-of-way from the west side of said tract, across the lands of Thomas M. Turner, to road now leading from Sparta to the W. B. Hunt residence.” Then followed an obligation to make title to said Brown, his heirs, executors, administrators and assigns, and on the paper was an assignment for value from Brown to the defendant:

*Held,*that this contract included the land sued for as described in the first head-note above.

4. The written contract covered the entire Hunt tract, as a whole, although it may have contained more than one hundred and seventy-five acres, and parol evidence was not admissible to show that the trade was at a given price per acre, there being no allegation of fraud or mistake in the writing and no attempt to reform it.

February 9, 1886.

Pleadings. Ejectment. Yendor and Purchaser. Contracts. Evidence. Deeds. Before Judge Lumpkin. Hancock Superior Court. April Term, 1885.

Reported in the decision.

*607James A. TIarley, for plaintiff in error.

Jordan & Lewis, for defendant.

Jackson, Chief Justice.

This is a suit for a tract of land brought by the executors of Thomas M. Turner, against George S. Rives, for the recovery of forty-five acres of land, being “ part of a tract of two hundred and twenty acres between Fort creek and Shoulder Bone creek, and bounded on the north by lands of Willie Adams, on the east by lands of Ross and Carpenter, and on the south and west by lands of said Rives.”

To this declaration a plea of not guilty was filed, and an equitable plea, to the effect that defendant became assignee of one Brown to an agreement in writing between The testator of plaintiffs and Brown, by which the said deceased agreed to make title to the entire tract, of which this forty five acres sued for is alleged to be part, to Brown or his assignees; that when he ascertained that the plaintiffs were dissatisfied and sought to recover a part of the land thus sold, defendant offered to rescind the trade, which was declined, and that they retain two thousand dollars paid for all the land, and seek to recover part of it, which is inequitable, and he prays that they be decreed to make titles to the whole tract bought, or rescind the sale and put the parties in *statu quo.*Whereupon the jury found a decretal verdict to the effect that the premises belonged to the defendant, and that title be made according to the prayer, upon which verdict the court decreed accordingly.

Thereupon a motion for a new trial was refused, and the plaintiffs excepted.

1. It is doubtful, to say the least, whether a recovery could have been had on the declaration, without a more accurate description of the part of the tract sought to be recovered ; but no point was made upon it by demurrer or otherwise. Possibly, had the point been made, an amendment might have made the description sufficiently accurate to uphold a verdict for plaintiff.

*6082. Be that as it may, the defendant had the. right to file the equitable plea and set up facts which would authorize a decree compelling the plaintiffs to do what their testator had promised, and make titles to the tract which had been paid for, his offer to rescind having been refused.

8. This narrows the investigation here to a single point— what was the contract between the parties touching the sale?

It is in writing, and is as follows, in so far as is material to throw light upon the issue in dispute:

> “ Received . . o£ George R. Brown two thousand dollars in full payment for two hundred and fifty acres of land lying in Hancock county, adjoining lands of Willie B. Adams, Ross, George S. Rives and Thomas M. Turner, known in the late survey of the lands of, Thomas M. Turner .as the James M. Hunt place, one hundred and seventy-five acres, and the seventy-five acre tract on the west side of Fort creek, possession of said lands given this day to said George. R. Brown, together with the right-of-way from the west sideof said tract, across the lands of Thomas M. Turner, to road now leading from Sparta to the W. B. Hunt residence.”

Then follows the obligation or covenant to make titles to the said Brown, his heirs, executors, administrators and assigns; and upon this paper is the transfer or assignment for value to the defendant.

It will be observed from the declaration that the suit is for part of the James M. Hunt place. Such is the description, and such the abstract of title declared upon or appended as part of the complaint.

This appears to us to be a plain description of what is sold on that side of the creek.' True, it is said to be 175 acres, but that makes no difference. It is that tract which is sold, together with a seventy-five acre tract on the other side of Fort creek. About that tract there is no dispute and no suit. It is part of the Hunt tract, forty-five acres of that which is sued for. By the contract, that whole tract is sold. It is the tract named in the deed appended to the writ. It is defined as part of the survey of the Turner lands, known as the. James M. Hunt place. That *609fixes the tract sold; all thought it contained 175 acres. It had always been thought to contain that number: It may' have turned out to be larger, as many tracts are; but the-tract is sold. Is verbal testimony admissible to show that it was not that tract which was sold, but only one hundred and seventy-five acres of it? We think not. The entire contract is in writing. Two tracts are sold on different sides of Fort creek, with a right-of-way over the rest of Turner’s land to the public road. To admit evidence to show that the trade was at eight dollars per acre would be to alter the writing in respect to the tracts of land, and to exclude the easement or right-of-way as paid for at all. There is no allegation of fraud or mistake about the writing, nor any prayer in equity, or in the nature of equity by pleadings at law, to reform this writing and correct the mistake, and there being no ambiguity about the writing. Such being the case, there was no error in ruling out the parol evidence.

It follows that the verdict and decree are right, and the .judgment must be affirmed.

See, cited for plaintiff in error, 26 *Ga.,*564; 50 *Id.,*618; 54 *Id,*513; 55 *Id.,*288; 46 *Id.,*232; Code, §§2642, 2248. None of these citations collide with the views of this case above expressed.

For defendant, Code, §§2757, 3800; 43 *Ga.,*190; 52 *Id.,*448; 34 *Id.,*289; 26 *Id.,*564; 50 *Id.,*618; Code, §2642-

Judgment affirmed.