delivered the opinion of the court.

Sherwood Green proves that Davis promised Tisdale to pay him for any overplus of land more than 196 acres, at the price the 196 was .sold for, if on survey by the county surveyor, the tract was found to contain more than the parties had supposed at the time the title bond was executed. On survey, it measured nineteen acres more.

The judgment was warranted by the proof, and not *174hindered by the statute of frauds; because, for the sale - , , '' , , , ^ . oi the land, lisdale was bound by covenant. Davis might well have been recovered against for the purchase money, in assumpsit; Tisdale being bound by his bond for the title.

Before this suit was brought, Tisdale had, in fact, conveyed to a purchaser from Davis, and at his request.

Judgment affirmed.