By the Court.
Lumpkin, J.
delivering the opinion.
[1.] We think the Circuit Judge was right in allowing the defendant’s plea to be amended, but that he erred in permitting the execution to be read to the Jury as a set-off.
[2.] Instead of the ft. fa. the judgment, upon which it issued, should have been tendered in evidence.
[3.] Nor do we concur in the opinion, that the purchase money, with the interest thereon, is the measure of damages in an action on a bond for titles to land. Such a rule would tempt the vendor, in any case where the property increased in value, to violate his contract. The proper criterion is, the value of the land at the time when the title should have been made. Davis and Smith (5 Kelly & Cobb, 274,) was for the breach of a covenant of warranty.,of title, and, therefore, distinguishable from the present case.
[4.] If the vendee and obligee is not content with this measure of compensation, he may go into Equity and compel a specific performance of the contract. Or if that is rendered impossible, as in the present instance, for want of title in the vendor, he may, by making a proper case, move in a Court of Chancery, and have a suitable allowance made him for his improvements. See Martin vs. Atkinson, 7 Cobb, 228.
Judgment reversed.
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