1. Where a plaintiff in execution, who had surrendered the fi. fa. to the defendant in execution and had taken from him a deed to secure the indebtedness represented by the fi. fa., which deed contained a faulty description of the land sought to be conveyed as security for the debt, instituted a suit against the grantor and obtained a reformation of the deed as respecting the description of the land sought to be conveyed, and obtained a verdict and judgment against the grantor for the indebtedness represented by the deed, the grantee, by undertaking to reform the deed and obtaining a verdict and judgment against the grantor for the indebtedness represented by the deed, elected to stand upon his rights under the security deed, and not under the original fi. fa. which he had surrendered, and therefore waived the right, if he had any, by reason of any defect in the deed, to rescind the contract represented by the security deed and the surrender of the fi. fa., and to assert tine to the fi. fa. in the hands of the grantor.
2. In a suit in trover by the grantee against the grantor, to recover the fi. fa., where it appeared from undisputed evidence that the plaintiff afterwards elected to proceed against the defendant on the security deed as above indicated, and that the plaintiff thereby forfeited any right, title, or interest in the fi. fa., a verdict for the defendant was properly directed.
Judgment affirmed.
Jenkins, P. J., and Bell, J., eoneur.