Opinion op the Court by

The answer to the original petition controverted the allegations importing indebtedness from the appellant to Jennings, and except it be for the price of 12 acres of land, then, as it seems in litigation, the evidence does not sustain the petition, but confirms the answer. By an amended petition the purchase by appellant of the 12 acres is set up and suit between him and Jennings, litigating the title, is referred to as evidence, and the appellee took on herself the burden of showing that appellant would be indebted to Jennings by a judgment in that case, confirming the contract; this, though controverted, was not sustained by an exhibition of the record of that suit or otherwise.

As the question of indebtedness depended on the result of that suit, it is singular that neither party made the fact appear in any legitimate way, but the burden being on the plaintiff to make *597out her ease, the judgment in his favor can not be sustained. As the special judge who tried the case may have based his action on some result of the other suit, which does not appéar in this record, this court refrains from directing peremptorily a dismission of the case, on its return to the court below, which will permit further preparation and proceedings with reference to the confirmation or rescission of the contract concerning the tract of 12 acres of land.

Wherefore, the judgment is reversed, and the cause remanded for further .proceedings as herein indicated.