Trippe, Judge.
We do not think that the strict law of tender applies to a contract like this. It rather, by its terms, was an agreement that the claims which the maker of the note held against the intestate should be a mutual debt, so far as it concerned that note, and so far as the estate was sufficient to pay those claims. It did not give the defendant below an absolute right to discharge his debt by the tender or delivery of certain things, or any certain amount of “ notes and demands.” The right was qualified with the condition that they were to be paid *73“ to the extent, and so far as the estate is sufficient to pay the debts thereof.” In McDaniel, administrator, vs. Hooks, 30 Georgia, 981, it was held that when an administrator, in selling land which is encumbered with a vendor’s lien, agrees with the purchaser before the sale, to take up the lien, he is bound to allow the lien in settling with the purchaser. That case was a suit at law on the purchaser’s note given for the land. The defendant proposed to prove by one Munroe that pending the sale he, Munroe, told the defendant that he held a note on Shiver,-the deceased, given for the same lot of land, and that it was agreed if the defendant became the purchaser at the sale, and would take up the note from Munroe, that the plaintiff would accept it as a credit or payment on the note sued on, as far as it would go; that pursuant to agreement, Hooks, the defendant in the case, purchased the note from Munroe. This court held that the administrator was bound to allow the credit in settling with the purchaser. The note was pleaded as a set-off. In that case it was a verbal contract, here it is in writing, and made a part of the note sued on, that the plaintiff will receive whatever amount of notes and demands the maker holds on the estate to the extent it is sufficient to pay. We think there was error in dismissing the plea of defendant.
Judgment reversed.