— There is no error in the refusal of the court to permit defendants to prove that McPherson, one of the plaintiffs, had sold his interest in the note sued on, before the suit was commenced. His name appearing as one of the payees, the defense that he is not the party really interested can not be let in, unless there is filed a verified plea denying his interest or ownership.. — Mo. Life Ins. Co. v. Egger, 67 Ala. 134. Besides, the note is payable at a bank, and, under section 2594 of the Code, an action thereon must be instituted in the name of the persons having the legal title.

In November, 1890, one Hriskell sold to the payees in the *484note, in consideration of one hundred dollars, the right and option to purchase, at any time on or before January 1st, 1891, all or any part of certain .described lands, at stated prices, and on specified terms. This was a valid contract, irrevocable by Driskell, and unless shown to be otherwise objectionable, the proper subject of specific performance in a court of equity. Wilks v. Ga. Pac. R. R. Co., 79 Ala. 180. The consideration of the note sued on was one-sixth interest in this option, and is supported by a sufficient consideration. The agreement between the parties was, that defendants were to share, to the extent of their interest, in the profits, if any, accruing from a ¡sale of the land, or of the option itself; and if plaintiffs decided to buy the land to hold, defendants were not to pay any more .money. A share oí the profits, if the option or the land was 'sold, was the legal right of defendants, without an express agreement to such effect. Incorporating such a stipulation does not constitute it a wagering contract. There is no element of illegality.

The refusal to account to defendants for the profits, arising from a sale of five-sixths interest in the option, does not constitute a failure of consideration, though it may be the proper subject of a plea of set-off.

The contract between Driskell and the plaintiffs was relevant and admissible under the pleas setting up illegality and failure of consideration.

Affirmed.