Overton was the defendant in the district court, and from his second answer it appears that he meant to defend himself under the obsolete doctrine concerning exchanges of land. This case, however, does not authorize the attempt: because neither of the writings between the parties contain the 'expression, exchange, which is indispensable to constitute such contracts. Therefore this contest ought to be decided on the same principles as other purchases of real estate. By the obligation given by Clough Over-ton to French, and by the obligation given by French to Clough Overton, they and their heirs are mutually bound to make a good and lawful title, clear of all charges, costs, disputes, and incumbrances, &e., which it is conceived (all expenses having been paid) only requires deeds with general warranty. Or, at least, had such deeds been made, these obligations would have been complied with. This not having been done before it was discovered that other persons also have legal titles to the lands which French is bound to convey, the principal question is, ought Clough Overton’s heir to have been decreed to convey to French, before those adverse rights are extinguished, if it can be done, or the value of the lands paid
Wherefore, it is decreed and ordered, that the said decree be affirmed, and that the appellant do pay unto the appellee his costs in this behalf expended; which is ordered to be certified to the Mercer circuit ,court.