The theory upon ' which the plaintiff claims to recover is, that his assignor, in October, 1864, con*47veyed by deed a tract of land to defendant; that defendant then paid for 60 acres, and agreed that when the land conveyed was surveyed, if more than 60-j-6^ acres, he would pay for the surplus. The plaintiff had a survey made in 1878 which showed 62-j-fy acres in the piece.

The deed was not offered in evidence, and what land or how much was conveyed therein was not shown on the trial. If there were but acres described in and conveyed by

the deed, then there could be no foundation for the claim of the plaintiff in the present case. Under the evidence, whether the oral agreement to take and pay for the surplus was valid under the statute of frauds, and if so, whether the statute of limitations did not bar the claim, although raised, we think are not material,-as it does not appear whether anything more than the sixty acres were conveyed.

The judgment must be affirmed with costs.