The opinion
Deadeeick, C. J.,
delivered a dissenting opinion, in which Sneed, J., concurred:
I do not concur in the opinion of the majority of the court. The plaintiffs sue the defendant at law to recover the balance duo upon a note executed by Moses E. Johnson to them. They sold and conveyed to Johnson a tract of land in Arkansas, retaining a lien, and took several notes, amongst others, one for $2,680.22, payable January 1, 1860.
This deed from the plaintiffs to Johnson was made in September, 1857. In December, 1860, Johnson sdld and, by deed of that date, conveyed to defendant, Stovall, the same tract of land, also retaining a lien for unpaid purchase money. This deed recites that “the said George A. Stovall assumes the payment of a note for $2,680.22, drawn by said Moses E. Johnson, and dated September 1, 1857, payable to James T. Moore and William S. Miller, on the 1st of January, 1860, on which is credited $1,000 May 22, 1860.”
The said note, as the deed recites, “was executed in part payment of said land by said Johnson to Moore & Miller, and is now in the hands of W. K. Poston, to be delivered to said Moore & Miller when they make a perfect and valid title to said land, and not till then; and it is expressly agreed and understood that said Stovall is to stand in the shoes of said Johnson as to this note, and is not to be bound *546 for its payment until the compliance with said condition.” This deed, containing the above recitals, was signed by Johnson and his wife only.
In January, 1861, Stovall and wife conveyed the same land to John B. Cobb, and in describing the land refer to it as being the same land conveyed by Moore & Miller to Johnson by deed dated in September, 1857, and by Johnson and wife to him, Stovall, by deed dated December, 1860, but no reference is made to any purchase money remaining unpaid which Stovall was bound to pay. The Circuit Judge charged the jury that there was no competent evidence to sustain the plaintiff’s claim, and the jury found for defendant, and plaintiffs have appealed to this court. The instructions of the court were founded upon the absence of any written agreement or promise by Stovall to pay the debt of Johnson. Our statute of frauds and peijuries provides that “no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, unless the promise or agreement' upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized.” Code, sec. 1758.
•The debt for which it is sought to hold Stovall liable is one due by note from Johnson to Moore & Miller. There is certainly no written promise by Stovall, signed by him, to pay it, and the case is clearly within the provisions of the statute of frauds, *547 ■and tbe principles of the case of Campbell v. Findley, 3 Hum., 330 , which has been followed and approved by this court.
In this case Johnson owed Moore& Miller a debt evidenced by note, for which a lien was retained in their deed to him. It is not pretended that this lien, or the liability of Johnson to Moore & Miller, was released; both the liability of the note and' the lien 'for its payment are still subsisting, and whatever verbal promise was made by Stovall, if any, to pay the debt .of Johnson, was a collateral promise to Johnson to pay his debt, and this case falls within the principle of Campbell v. Findley, 3 Hum., 330 , and the promise, to be binding, must be in writing. Johnson, in his conveyance, also retains a lien upon the land conveyed to Stovall to secure this very debt, which is still due him from Stovall, and for which Johnson has a right to sue him, and the effect of the holding of a majority of this court is to decide that Stovall owes both Johnson and Moore & Miller.
The judgment of the circuit court was, in my opinion, correct, and ought to be affirmed.